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EXCESS  CONDEMNATION 


The 

National  Municipal  League  Series 

Edited  by  CLINTON  ROGERS  WOODRUFF 

Secretary   of  the  National  Municipal  League 

City  Government  by  Commission 

Edited  by   Clinton   Rogers   Woodruff 

The  Regulation  of  Municipal  Utilities 

Edited  by  Clyde  Lyndon  King 

The   Initiative,   Referendum    and    Recall 

Edited  by  William  Bennett  Munro 

The  Social   Center 

By  Edward  J.  Ward 

Woman's  Work  in  Municipalities 

By  Mary  Ritter  Beard 

Lower  Living  Costs  in  Cities 

By  Clyde  Lyndon  King 

The  City  Manager 

By  Harry  Aubrey  Toulmin,  Jr. 

Satellite  Cities 

By  Graham  R.  Taylor 

City  Planning 

Edited  by  John  Nolen 

Town   Planning   for   Small   Communities 

Edited  by  Charles  S.  Bird,  Jr. 

Excess  Condemnation 

By  R.  E.  CusHMAN 

Municipal  Functions 

By  IE  G.  James 

D.     APPLETON    AND    COMPANY 

Publishers  New  York 


NATIONAL   MUNICIPAL   LEAGUE    SERIES 

EXCESS 
CONDEMNATION 

BY 

ROBERT  EUGENE  CUSHMAN 


INSTRUCTOR  IN  POLITICAL  SCIENCE 
UNIVERSITY  07  ILLINOIS 


NEW  YORK  AND  LONDON 

D.  APPLETON  AND  COMPANY 

1917 


Copyright,  igi?,  by 
D.  APPLETON  AND  COMPANY 


\9n 


Printed  in  the  United  States  of  America 


h 


TO 

MY  FATHER 


686213 


PREFACE 

There  are  several  angles  from  which  the  subject  of 
excess  condemnation  may  be  approached.  To  the  city 
planner  it  offers  a  possible  means  for  controlling  the  phys- 
ical development  of  a  city;  to  students  of  municipal 
finance  it  presents  a  method  of  paying  for  public  improve- 
ments; for  the  constitutional  lawyer  it  raises  interesting 
and  difficult  problems  in  the  law  of  eminent  domain.  As 
a  result  excess  condemnation  has  attracted,  in  the  main, 
only  the  casual  attention  of  those  interested  primarily  in 
other  questions.  In  the  following  chapters  an  attempt 
has  been  made  to  present  a  well  rounded  and  independent 
study  of  excess  condemnation  which  does  not  ignore  the 
many  problems  with  which  it  is  intimately  connected  and 
which  also  affords  a  broad  view  of  the  purposes  for  which 
it  may  be  used  and  the  numerous  questions  connected 
with  its  theory  and  practice. 

It  ought  to  be  said  that  excess  condemnation  is  here 
treated  from  the  standpoint  of  the  American  city.  Such 
a  limitation  in  the  scope  of  the  study  seemed,  in  the  first 
place,  wise  because  of  the  great  length  to  which  the  dis- 
cussion must  otherwise  have  been  extended ;  but  also  it 
seemed  necessary  because  the  first-hand  investigation  in 
Europe  which  would  be  essential  for  any  adequate  treat- 
ment of  its  operation  in  foreign  cities  was  interrupted  by 
the  outbreak  of  the  European  war.  Such  discussion  of 
the  experience  of  European  cities  with  the  policy  of  ex- 
cess condemnation  as  appears  in  the  following  chapters 
does  not  purport  to  be  an  exhaustive  study.    It  is  intro- 


PREFACE 

duced  merely  for  illustrative  and  comparative  purposes. 

One  who  penetrates  into  a  field  of  study  so  nearly  un- 
touched as  this  one  would  be  exceedingly  reluctant  to  ad- 
vance theories  and  programs  which  must  be  subjected  to 
the  tests  of  subsequent  experience  and  research,  were  it 
not  for  the  fact  that  in  doing  so  it  may  be  his  privilege  to 
open  discussion  and  invite  criticism  which  may  help  to 
clarify  public  thinking  upon  an  important  question  of  the 
day.  It  is  hoped  that  the  opinions  and  proposals  which 
are  tentatively  put  forth  in  this  volume  may  serve  this 
useful  purpose. 

The  responsibility  for  any.  errors  or  inadequacies  which 
may  appear  in  the  pages  of  this  study  rests  upon  the 
author  alone.  He  may  not,  however,  fail  to  acknowledge 
his  indebtedness  to  friends  and  colleagues  who  have  made 
helpful  suggestions,  to  numerous  public  officials  who  have 
generously  answered  his  inquiries,  and  particularly  to 
Professor  Howard  L.  McBain  of  Columbia  University 
for  guidance  and  direction  throughout  the  entire  prepara- 
tion of  the  study. 

J  Robert  E.  Cushman. 
University  of  IllinoiSj  I 

Urbana,  Illinois. 


EDITOR'S  INTRODUCTION 

The  building  of  cities  has  taken  on  new  importance  in 
recent  years,  not  only  as  a  physical  problem  of  arrange- 
ment, but  as  one  of  social  control,  economic  development, 
and  finance.  Gradually  municipal  students,  and  city  ad- 
ministrators and  legislators,  are  coming  to  realize  that 
it  is  at  once  a  science  and  a  matter  of  constructive  states- 
manship. Two  of  the  volumes  already  published  in  the 
National  Municipal  League  Series  deal  with  the  subject 
—  Dr.  Nolen's  with  its  broader  aspects  and  Mr.  Bird's 
with  its  relation  to  the  small  communities.  The  present 
volume  by  Dr.  Cushman  takes  up  what  may  be  regarded 
as  a  detail  —  a  most  important  one,  however,  as  it  in- 
volves in  a  high  degree  all  of  the  several  phases :  phys- 
ical, social,  economic  and  financial.  It  is  because  of 
this  fact  that  it  has  been  deemed  advisable  to  devote  a 
single  volume  to  what  to  some  may  seem  like  a  narrow 
subject.  Moreover,  there  is  no  work  in  the  English  lan- 
guage on  the  subject,  and  the  publishers  have  agreed 
with  the  editor  of  the  Series  as  to  the  necessity  for  the 
presentation  of  an  adequate  treatment  at  this  time. 

Dr.  Cushman,  the  author  of  the  book,  has  devoted 
three  years  to  a  careful  study  of  European  and  American 
experience.  He  was  in  Berlin  on  this  errand  at  the  time 
the  great  European  War  broke  out.  Although  the  latter 
handicapped  him  to  some  extent,  he  had  already  gathered 
sufficient  material  to  enable  him  to  make  an  authorita- 


X  EDITOR'S  INTRODUCTION 

tive  presentation  of  the  theory  and  practice  of  excess 
condemnation. 

It  is  the  belief  of  the  editor  of  the  Series  that  this 
pioneer  volume  will  prove  in  time  to  be  one  of  the  big 
and  determining  contributions  to  the  development  of 
American  cities  along  progressive,  social  and  financial 
lines.  An  abundance  of  references  adds  to  the  practical 
value  of  the  book,  which  has  been  written  with  both  the 
theorist  and  the  practical  man  of  affairs  in  mind. 

Clinton  Rogers  Woodruff. 


CONTENTS 

CHAPTER  PAGE 

I.    The  Theory  of  Excess  Condemnation    ...       i 

11.    Excess    Condemnation    and   the   Problem    of 

Remnants  of  Land 24 

III.  Excess  Condemnation  for  the  Protection  of 

Public  Improvements 73 

IV.  Excess    Condemnation     for    Recoupment    or 

Profit 119 

V.    Financial  Gains  and  Risks  of  Excess  Condem- 
nation        180 

VI.    The  Administration  of  Excess  Condemnation  215 

VII.    The  Constitutionality  of  Excess  Condemna- 
tion       275 

Bibliographical  Note 311 

List  of  Cases  Cited 315 

Index 317 


EXCESS  CONDEMNATION 

CHAPTER  I 

THE  THEORY  OF  EXCESS   CONDEMNATION 

There  are  several  reasons  why  it  is  still  perfectly 
respectable  to  be  completely  ignorant  about  excess  con- 
demnation even  though  it  is  almost  one  hundred  years 
old.  In  the  first  place,  the  policy  of  government  to  which 
this  not  very  illuminating  title  is  applied  is  indigenous 
to  European  countries.  Only  in  Great  Britain,  France 
and  Belgium  has  it  passed  beyond  the  experimental  stage. 
Then,  too,  the  name  "excess  condemnation  "  is  a  fairly 
recent  American  term.  The  European,  therefore,  while 
he  may  be  familiar  with  the  policy  itself,  may  not  recog- 
nize it  by  its  American  name.  And  in  the  United  States, 
not  only  are  the  term  and  the  policy  which  it  denotes  of 
recent  origin,  but  also  the  attempts  to  employ  excess 
condemnation,  or  even  to  legalize  it,  have  been  confined 
to  relatively  few  places.  Outside  these  places  there  is 
little  interest  in  the  scheme  and  little  knowledge  regard- 
ing it,  save  upon  the  part  of  a  few  city  officials  and  city 
planning  experts.  It  is  only  very  slowly  that  the  term 
"  excess  condemnation "  is  coming  to  convey  even  a 
vague  idea  to  the  layman. 

To  make  this  policy  still  more  hazy,  the  term  "  excess 
condemnation "  is  far  from  being  self-explanatory. 
Neither  in  theory  nor  in  practice  is  the  policy  which  it 
denotes  simple  and  clean-cut.     It  is  always  a  complex 


2  EXCESS  CONDEMNATION 

policy,  multifarious  in  the  forms  in  which  it  appears  and 
the  purposes  for  which  it  is  employed.  One  may  speak, 
therefore,  of  excess  condemnation  and  still  be  under  the 
necessity  of  explaining  in  detail  which  of  several  forms 
of  excess  condemnation  one  has  in  mind. 

Yet  it  is  possible  to  frame  a  definition  of  excess  con- 
demnation that  will  cover  its  essential  characteristics. 
Defined  thus  generally,  excess  condemnation  may  be  said 
to  be  the  policy,  on  the  part  of  the  state  or  city,  of 
taking  by  right  of  eminent  domain  more  property  than 
is  actually  necessary  for  the  creation  of  a  public  im- 
provement, and  of  subsequently  selling  or  leasing  this 
surplus.  In  a  certain  sense  it  is  superfluous  to  state  that 
the  surplus  property  may  be  disposed  of  by  the  state 
or  city,  because  if  this  were  not  done  there  would  be 
no  possible  motive  for  taking  the  excess  and  the  scheme 
would  never  be  put  into  operation.  Furthermore,  if  the 
city  were  unable  to  sell  or  lease  the  surplus  property  it 
would  be  obliged  to  hold  it  or  use  it  and  it  is  doubtful 
if  land  so  held  or  used  by  the  city  could  be  said  to  be 
condemned  "  in  excess  "  of  need.  The  essence  of  the 
policy  of  excess  condemnation  is,  then,  the  condemning, 
by  the  government,  of  more  property  than  is  actually 
needed. 

There  are  two  elements  in  excess  condemnation  which 
are  worthy  of  consideration.  It  is  worth  noting,  in  the 
first  place,  that  this  policy  involves  the  right  of  the  public 
authorities  to  condemn  property.  In  191 1  the  legisla- 
ture of  Wisconsin  passed  a  law  permitting  the  board 
of  land  commissioners  of  any  city  of  the  first  class  "  to 
acquire,  in  the  name  of  such  city,  lands  and  improve- 
ments thereon  in  any  manner  by  purchase,  lease,  contract 
or  gift,  within  1000  feet  of  any  existing  or  contemplated 
public  park  or  parkway,  and  to  sell,  mortgage,  lease  or 


THEORY  OF  EXCESS  CONDEMNATION       3 

contract  for  the  sale  of  the  same  in  any  manner.  ,  .  ."  ^ 
This  law  has  sometimes  been  referred  to  as  an  excess 
condemnation  statute.  In  reality  it  provides  only  for 
excess  purchase,  and  no  authority  is  given  by  its  provi- 
sions to  take  private  property  without  the  consent  of  the 
owner.  In  certain  other  states  laws  have  been  enacted 
by  which  cities  may  be  compelled  to  purchase  the  whole 
of  a  man's  estate  if  part  has  been  taken  by  eminent 
domain  and  he  does  not  wish  to  keep  the  remainder.^ 
But  here  again,  although  property  is  taken  in  excess  of 
actual  public  need  the  excess  property  is  not  condemned 
but  purchased.  Unless  the  surplus  land  is  taken  by  emi- 
nent domain,  the  taking  cannot  be  accurately  called 
excess  condemnation. 

In  the  second  place,  excess  condemnation  involves  the 
taking  of  private  property  "  in  excess  " ;  that  is  to  say, 
in  excess  of  what  is  used  for  making  the  improvement. 
It  is  not  necessary  at  this  point  to  enter  into  a  discussion 
of  the  various  purposes  for  which  the  American  law  of 
eminent  domain  permits  the  taking  of  private  property 
by  the  public.  It  is  sufficient  to  note  that,  prior  to  the 
recent  enactment  of  excess  condemnation  statutes,  the 
state  or  city  has  customarily  condemned  property  only 
when  all  the  property  so  taken  was  actually  to  be  used 
by  the  public  for  such  purposes  as  highways,  parks  or 
sites  for  public  buildings.  Excess  condemnation  involves 
a  taking  by  eminent  domain  of  property  which  is  not 
used  for  any  of  these  ordinary  purposes  and  which  will 
lie  completely  outside  the  lines  of  the  street  or  park 
which  is  being  created  or  improved. 

Perhaps  this  second  essential  element  of  excess  con- 
demnation may  be  made  more  clear  by  distinguishing 

iLaws  of  Wisconsin,  (1911),  Ch.  558,  Sec.  2. 
2  See  infra,  p.  49. 


4  EXCESS  CONDEMNATION 

between  that  policy  and  a  somewhat  similar  exercise 
of  the  power  of  eminent  domain.  Cities  and  states,  both 
in  this  country  and  abroad,  have  frequently  condemned 
private  property  for  the  purpose  of  reclaiming  land  which 
was  before  unusable,  or  for  the  purpose  of  clearing  out 
insanitary  slum  areas.  Some  forty  years  ago  the  state 
of  Massachusetts  began  the  work  of  reclaiming  the  so- 
called  Back  Bay  Flats,  low  land  over  which  the  tides 
from  Boston  Harbor  ebbed  and  flowed.  These  lands 
were  utterly  unusable  and  their  condition  prevented  the 
efficient  use  and  development  of  that  portion  of  the 
harbor.  The  state  adopted  the  most  simple  and  direct 
plan  for  accomplishing  the  work  when  it  acquired  title 
to  this  whole  area  by  right  of  eminent  domain.  The 
lands  were  properly  drained  and  protected  and  the  nat- 
ural result  was  a  large  increase  in  their  value.  The  sale 
of  a  large  portion  of  the  district  resulted  consequently 
in  a  handsome  profit  to  the  state.^  In  several  instances 
other  states  have  enacted  laws  making  it  possible  to  carry 
through  similar  undertakings.* 

In  England  and  Scotland  a  like  policy  has  been  fol- 
lowed as  a  means  of  solving  the  housing  problem.  Cer- 
tain acts  of  Parliament  permit  cities  under  the  direction 
of  the  local  government  board,  to  condemn  an  entire  slum 
area.  The  city  may  then  tear  down  the  insanitary  tene- 
ments and  either  erect  workmen's  cottages  which  it  may 
rent,  or  sell  the  land  to  private  parties  who  are  bound  to 
erect  workmen's  dwellings.^ 

3  Moore  vs.  Sanford,  151  Massachusetts,  285  (1890).  Statutes 
of  1869,  Ch.  446;  1875,  Ch.  239;  1884,  Ch.  290.  The  court  upheld 
the  project  as  constitutional.  The  profit  made  by  the  state  was 
declared  to  be  purely  incidental  to  the  main  purpose  of  the  un- 
dertaking. 

*  See  for  example :  South  Carolina  Civil  Code,  Ch.  48,  Art.  g 
(1909)  ;  Massachusetts  Laws  of  1913,  Chs.  543,  759,  767. 

6  Housing  of  Working  Classes  Act  (i8go),  53  and  54  Vict.,  Ch, 


THEORY  OF  EXCESS  CONDEMNATION       5 

Some  writers  are  inclined  to  regard  these  rehabilita- 
tion schemes  as  examples  of  excess  condemnation." 
And  perhaps  in  a  very  strict  sense  it  may  be  said  that 
there  is  in  such  a  project  a  condemning  of  property  in 
excess  of  what  the  city  actually  needs  for  the  comple- 
tion of  the  improvement.  It  is  possible  that  the  state 
or  city  might  have  accomplished  this  reclamation  and 
rehousing  work  by  acquiring  merely  certain  easements 
or  rights  in  the  property  which  was  to  be  improved. 
From  that  point  of  view  it  might  be  urged  that  when  the 
city  went  beyond  the  taking  of  easements  and  condemned 
title  to  the  land  itself,  thus  using  a  right  of  condemnation 
greater  than  was  absolutely  necessary  for  the  purposes 
of  the  improvement,  it  was  condemning  property  in  excess 
of  what  was  needed  and  the  project  was,  therefore,  an 
example  of  excess  condemnation. 

Such  a  doctrine  would  unduly  broaden  the  meaning  of 
the  term  excess  condemnation.  It  would  bring  within  its 
scope  every  case  in  which  the  public  authorities,  in  seek- 
ing to  accomplish  a  definite  public  object,  take,  in  the 
exercise  of  their  discretion,  greater  property  rights  than 
are  indispensably  necessary  for  that  purpose.     There  is, 

70,  which  has  been  amended  and  expanded  by  the  acts  of  1893,  1894, 
1896,  1900,  1903  and  1909. 

In  1915  the  following  amendment  to  the  constitution  was 
adopted  in  Massachusetts :  "  The  general  court  shall  have  power 
to  authorize  the  commonwealth  to  take  land  and  to  hold,  improve, 
subdivide,  build  upon  and  sell  the  same,  and  to  do  any  other  lawful 
act  in  relation  thereto,  for  the  purposes  of  relieving  congestion  of 
population  and  providing  homes  for  citizens :  provided  however, 
this  amendment  shall  not  be  deemed  to  authorize  the  sale  of  such 
land  or  buildings  at  less  than  the  cost  thereof."  This  power  has 
not  as  yet  been  utilized. 

8  Mr.  Herbert  S.  Swan,  who  prepared  a  report  on  excess  con- 
demnation for  the  Committee  on  Taxation  of  the  city  of  New  York, 
has  incorporated  into  his  monograph  a  chapter  on  "  The  Clearance 
of  Insanitary  Areas  in  Scotland." 


6  EXCESS  CONDEMNATION 

for  example,  certainly  no  exercise  of  excess  condemna- 
tion where  a  city,  in  opening  a  street,  takes  the  fee  in  the 
land,  instead  of  following  the  more  usual  system  of  con- 
demning an  easement  merely;  and  yet  it  is  difficult  to 
see  how  this  differs  in  principle  from  the  taking  in  the 
reclamation  cases.  The  better  view  would  seem  to  be 
that  land  is  condemned  in  excess  only  when  it  is  taken 
for  a  definite  purpose  other  than  the  actual  creation  of 
the  public  improvement  which  the  city  has  undertaken. 
It  is  taken  for  a  supplementary  purpose  and  one  which 
is  quite  separable.  The  surplus  land  is  not  condemned 
as  a  means  of  producing  the  public  work  in  connection 
with  which  it  is  acquired  because,  although  it  may  be 
acquired  for  some  related  purpose,  it  is  not  necessary 
to  the  creation  of  that  work  that  it  be  taken  at  all. 
Under  this  interpretation  it  is  not  easy  to  see  any  real 
element  of  excess  condemnation  in  the  projects  of  re- 
housing and  reclamation  which  have  been  mentioned.  In 
these  instances,  the  taking  of  the  land  itself  rather  than 
merely  easements  in  that  land  is  a  direct  and  expedient 
method  of  making  the  desired  improvement,  and  all  the 
property  rights  thus  acquired  are  by  fair  and  reason- 
able construction  necessary  for  that  purpose.  For  this 
reason,  any  detailed  examination  of  these  undertakings 
is  excluded  from  this  study  as  being  irrelevant  to  the 
main  problem  under  consideration. 

The  discussion  of  the  general  nature  of  excess  con- 
demnation, contained  in  the  foregoing  paragraphs,  pre- 
sents a  somewhat  vague  and  indefinite  notion  of  the  genus 
to  which  this  interesting  policy  belongs.  There  are  many 
species,  and  they  vary  greatly  in  the  numerous  and  com- 
plex provisions  through  which  the  general  principle  is 
transformed  into  an  actual  working  program.  In  the 
main,  however,  the  character  of  these  variations  will 


THEORY  OF  EXCESS  CONDEMNATION       7 

depend  upon  the  purpose  for  which  excess  condemna- 
tion is  being  employed;  for  it  is  this  purpose  which  will 
determine  the  amount  of  surplus  land  to  be  condemned, 
how  long  it  will  be  held  by  the  city,  and  under  what 
conditions  it  will  be  sold  or  leased.  A  brief  examina- 
tion of  the  purposes  for  which  the  scheme  may  be  used 
will  give  a  clearer  idea  of  the  principal  forms  in  which 
excess  condemnation  has  thus  far  ma.de  its  appear- 
ance. 

The  first  purpose  for  which  excess  condemnation  was 
used  in  the  United  States  was  to  solve  the  problem  of  lot 
remnants.  When  an  old  street  is  widened,  or  a  new 
street  cut  through  which  is  diagonal  to  the  boundary  lines 
of  the  abutting  lots,  it  usually  happens  that  fragments  of 
land  remain,  often  odd-shaped  and  of  such  size  and 
character  as  to  be  practically  unusable  in  the  condition 
in  which  they  are  left.  To  leave  these  remnants  awk- 
wardly fringing  the  lines  of  the  improvement  is  in- 
jurious both  to  the  nearby  property  owners  and  to  the 
city  itself;  and  yet,  for  reasons  which  are  presented  in 
a  later  chapter,  abutting  owners  are  unable  to  work  out 
any  satisfactory  remedy  for  such  a  condition.  Now  in 
no  sense  are  these  left-over  bits  of  land  necessary  to  the 
city  for  the  purpose  of  constructing  the  improvement. 
Some  states,  however,  have  allowed  their  cities  to  con- 
demn such  remnants  just  as  though  they  were  essential 
to  the  building  of  the  highway ;  after  the  improvement  is 
completed  the  city  disposes  of  these  remainders.  It 
usually  sells  them  to  the  adjoining  owners,  who  are  thus 
enabled  to  replot  their  land  so  as  to  absorb  the  remnants 
and  increase  the  usefulness  and  attractiveness  of  the 
entire  tract. 

The  second  purpose  for  which  excess  condemnation 
is  employed  is  for  the  protection  of  the  beauty  and  use- 
2 


8  EXCESS  CONDEMNATION 

fulness  of  public  improvements.  A  city  contemplates 
the  construction  of  a  beautiful  park  or  boulevard.  How 
can  it  be  sure  that  the  beauty  of  the  place  will  not  be 
marred  or  destroyed  by  an  unsightly  fringe  of  shanties 
or,  worse  still,  by  a  line  of  billboards  screaming  forth 
the  virtues  of  patent  medicines  or  tobacco?  Here  ex- 
cess condemnation  comes  to  the  rescue.  Instead  of 
taking  by  eminent  domain  just  enough  land  to  make 
the  park  or  boulevard,  the  city  condemns  also  the  land 
on  either  side  of  the  improvement  back  to  a  distance  of 
perhaps  one  hundred  or  two  hundred  feet.  After  the 
improvement  is  finished,  the  city  sells  the  surplus  land 
it  has  acquired;  but  it  writes  into  the  deeds  of  sale  re- 
strictions which  will  prevent  the  use  of  the  property  for 
purposes  which  would  be  detrimental  to  the  beauty,  light, 
air  and  usefulness  of  the  park  or  pleasure  drive.  The 
city  has  not  only  created  a  place  of  beauty,  it  has 
protected  that  place  forever  from  anything  which,  in 
the  opinion  of  the  authorities,  might  mar  or  disfigure 
it  or  impair  its  usefulness. 

A  third  purpose  for  which  excess  condemnation  has 
frequently  been  used,  especially  in  Europe,  is  for  the 
making  of  money.  Assume  that  a  city  finds  it  neces- 
sary, in  order  to  secure  proper  transportation  facilities, 
to  open  a  new  street  through  a  portion  of  its  territory 
already  built  up.  The  proposed  highway  is  primarily 
for  the  purposes  of  utility,  the  appearance  of  the  abut- 
ting property  being  a  secondary  consideration.  Yet  the 
cost  of  acquiring  the  land  actually  necessary  for  the  new 
street  is  so  great  as  to  be  well-nigh  prohibitive.  Assume, 
furthermore,  that  the  city  has  the  power  of  excess  con- 
demnation. It  may  then  condemn  not  merely  the  land 
actually  needed  for  the  highway  itself,  but  a  liberal  belt 
on  either  side.     As  soon  as  a  valuable  thoroughfare  is 


THEORY  OF  EXCESS  CONDEMNATION       9 

constructed,  this  property  becomes  at  once  more  desir- 
able and  its  value  rises;  whereupon  the  city  sells  this 
surplus  land,  not  at  the  price  at  which  it  was  acquired 
by  condemnation  based  upon  its  former  valuation,  but 
at  the  higher  price  due  to  its  enhanced  value.  The  profit, 
which  thus  comes  to  the  city  instead  of  to  former  own- 
ers or  to  real  estate  brokers,  goes  far  toward  meeting  the 
cost  of  the  improvement,  and  in  some  instances  has  net- 
ted the  city  a  tidy  surplus.  The  city  has,  in  short,  in- 
tercepted a  portion  of  the  increment  of  value  created 
by  the  expenditure  of  its  own  money. 

These  are  the  three  purposes  for  which  excess  con- 
demnation has  thus  far  been  utilized.  Sometimes  all  of 
these  purposes  have  been  merged  in  the  same  project, 
sometimes  they  have  been  pursued  singly.  And  even 
within  these  three  groups  the  variations  in  policy  and 
detail  have  been  exceedingly  numerous.  In  the  follow- 
ing chapters  these  three  main  types  of  excess  condem- 
nation will  be  analyzed  in  some  detail  in  the  light  of 
actual  experience, 

A  clear  understanding  of  the  essential  nature  of  ex- 
cess condemnation  necessarily  brings  with  it  an  appreci- 
ation of  the  fact  that  such  a  policy  involves  a  rather 
high  degree  of  social  control.  It  provides  for  a  some- 
what drastic  invasion  of  private  property  rights  for  the 
benefit  of  the  whole  community.  It  is  but  natural,  there- 
fore, that  there  should  be  many  in  this  country  who  con- 
demn excess  condemnation  with  great  bitterness,  who 
condemn  it  not  because  of  the  many  administrative  prob- 
lems it  presents  for  solution,  not  because  of  the  serious 
constitutional  questions  which  are  raised  regarding  it, 
but  because  they  look  upon  it  as  fundamentally  unsound 
in  theory.  To  them  it  seems  an  unwarranted  interfer- 
ence, on  the  part  of  the  government,  with  the  property 


10  EXCESS  CONDEMNATION 

rights  of  the  citizen.     They  call  in  question  the  princi- 
ple of  excess  condemnation  and  declare  it  unsound. 

To  determine  whether  excess  condemnation  is  sound 
or  vicious  in  theory  is  to  face  the  same  problem  which 
is  presented  by  almost  every  new  piece  of  social  legis- 
lation. There  is  the  same  balancing  of  privileges  and 
obligations.  On  the  one  hand  there  is  the  ancient  and 
sacred  right  of  the  citizen  to  continue  undisturbed  in 
the  possession  and  enjoyment  of  his  property,  except 
where  he  is  dispossessed  for  the  accomplishment  of  an 
unquestionably  public  purpose.  On  the  other  hand  are 
the-  more  general  conveniences  of  society  as  a  whole, 
the  furnishing  of  which  may  be  a  public  purpose  only 
in  a  broad  definition  of  community  needs,  and  not  at 
all  in  the  narrow  traditional  sense  of  indispensability. 
Which  of  the  two  should  control?  It  is  a  question  easy 
to  ask  and  hard  to  answer ;  not  hard,  perhaps,  for  this 
man  or  that  man  to  answer,  but  hard  to  answer  in  such 
a  way  as  to  convince  the  majority.  What  seems  to  one 
person  the  grossest  invasion  of  sacred  private  rights 
seems  to  another  merely  the  obvious  and  necessary  pro- 
tection of  community  interests.  In  last  analysis,  the  dif- 
ference between  legitimate  social  control  and  confisca- 
tion is  a  diflference  only  in  degree.  And  whether  one 
condemns  a  piece  of  social  legislation  or  regards  it  as 
necessary  and  beneficial  depends  not  only  upon  the  ac- 
curacy and  penetration  with  which  one  balances  private 
rights  over  against  public  welfare  in  any  concrete  in- 
stance, but  also  upon  the  degree  to  which  one's  social 
and  economic  viewpoint  is  dominated  by  an  individu- 
alistic or  communistic  philosophy.  This  is  the  reason 
why  the  same  problems  of  social  control  receive  differ- 
ent solutions  in  different  countries.  In  Europe,  where 
the  scheme  has  been  rather  widely  used,  the  theory  of 


THEORY  OF  EXCESS  CONDEMNATION     ii 

excess  condemnation  seems  to  have  called  forth  small 
comment  and  less  objection.  It  has  remained  for  Amer- 
icans, only  gradually  being  weaned  from  a  laissez  faire 
doctrine  of  governmental  action,  to  regard  the  princi- 
ple of  excess  condemnation  frequently  with  suspicion 
and  sometimes  with  disfavor. 

Whether  or  not  excess  condemnation  can  be  regarded 
as  a  justifiable  measure  of  social  control  will  depend  in 
large  measure  upon  the  purpose  for  which  it  is  employed. 
Certain  it  is,  that  the  taking  of  surplus  property^^in  order 
to  eradicate  the  evil  of  remnants  of  land,  or  In  order  to 
protect  the  beauty  and  usefulness  of  a  public  improve- 
ment, can  be  defended  upon  somewhat  different  prin- 
ciples from  those  which  support  the  use  of  the  scheme 
for  the  single  purpose  of  making  money  for  the  city. 
The  use  of  excess  condemnation  to  control  remnants  and 
its  use  to  protect  improvements  are,  in  a  certain  sense, 
similar  in  theory.  In  either  case  the  additional  land 
taken  by  the  city  is  acquired  for  a  purpose  very  closely 
allied  with  that  of  the  main  project  under  construction. 
If  it  is  proper  for  a  city  to  create  a  park  or  a  boule- 
vard in  order  to  enhance  the  beauty  of  the  district  and 
promote  the  health  and  pleasure  of  its  citizens,  it  is 
argued  that  it  ought  also  to  have  the  right  to  take  such 
measures  as  will  prevent  the  beauty  and  usefulness  of 
those  improvements  from  being  impaired  or  destroyed, 
either  by  the  continued  existence  of  unsightly  and  un- 
usable fragments  of  land  or  by  the  uncontrolled  dis- 
figurement of  the  abutting  property.  The  taking  of  the 
surplus  land  for  subsequent  sale  or  lease  under  restric- 
tions directly  promotes  a  purpose  of  the  same  kind  as 
does  the  taking  of  the  land  which  the  public  will  actually 
use.  There  are  few  who  will  deny  that  by  such  excess 
condemnation  of  property  the  city  is  seeking  to  do  some- 


12  EXCESS  CONDEMNATION 

thing,  to  accomplish  an  end  which  only  the  most  out- 
worn theories  of  social  control,  or  freedom  from  social 
control,  would  regard  as  illegitimate.  To  declare  that 
a  city  may  properly  make  a  large  and  expensive  improve- 
ment but  may  not  use  adequate  means  to  secure  to  its 
citizens  the  fullest  use  and  enjoyment  of  that  improve- 
ment is  to  rival  the  narrow  individualists  of  a  century 
ago. 

While  one  may  approve,  however,  of  the  beneficent 
ends  which  these  two  types  of  excess  condemnation  aim 
to  accomplish,  one  does  not  necessarily  admit  that  excess 
condemnation  is  the  only  nor  even  the  best  way  of 
carrying  out  those  purposes.  If  the  welfare  of  the  com- 
munity requires  that  the  state  or  city  exercise  control 
for  a  public  purpose,  it  is  reasonable  to  demand  first, 
that  that  control  be  efficient  and  adequate,  and  second, 
that  it  be  so  exercised  as  to  involve  as  small  an  inter- 
ference as  possible  with  individual  freedom  of  action 
and  the  rights  of  private  property.  And  this  is  precisely 
the  ground  on  which  the  use  of  excess  condemnation  for 
the  solution  of  the  remnant  problem  and  for  the  protec- 
tion of  public  improvements  is  bitterly  attacked.  To 
protect  the  usefulness  of  a  street  or  the  beauty  of  a  park 
is  one  thing;  to  do  it  in  the  manner  which  is  most 
drastic,  and  works  most  serious  hardships,  inconveni- 
ence and  deprivation  to  the  individual  citizens  whose 
interests  are  involved,  is  quite  another.  There  are  less 
drastic  means,  it  is  alleged,  by  which  the  city  could 
accomplish  the  same  purpose.  It  could,  for  example, 
condemn  merely  an  easement  in  the  property  abutting 
on  an  improvement,  paying  a  fair  price  for  the  right  to 
impose  upon  the  owner  of  that  property  such  restric- 
tions as  to  the  use  of  it  as  would  adequately  protect 
the    improvement    itself    from    disfigurement    or    other 


THEORY  OF  EXCESS  CONDEMNATION      13 

injury.  But  instead  of  this  simple  and  relatively  in- 
offensive method  of  accomplishing  this  salutary  purpose, 
it  is  proposed  to  use  excess  condemnation :  deprive  the 
abutting  owner  of  his  property,  oust  him  from  any  share 
in  the  direct  enhancement  of  the  value  of  that  property, 
compel  him  to  seek  at  much  inconvenience  a  new  loca- 
tion, and  then,  adding  insult  to  injury,  perhaps  sell  the 
land  thus  taken  from  him  to  his  business  rival.  Such 
a  policy,  claim  the  opponents  of  excess  condemnation, 
involves  an  unwarranted  and  unnecessary  subversion  of 
private  rights.  Certainly,  it  is  fundamentally  unsound 
in  principle  for  a  city  or  state  to  resort  to  a  needless 
interference  with  the  rights  of  its  citizens.  The  crux 
of  the  matter  is,  then,  is  it  a  needless  interference? 
The  issue  between  the  advocates  and  opponents  of 
excess  condemnation  for  the  purpose  of  thus  protecting 
public  improvements  narrows  down,  then,  to  this:  is  it 
reasonably  necessary  to  resort  to  the  use  of  this  policy 
in  order  adequately  to  accomplish  the  end  in  view  ?  The 
city  may  properly  employ  such  methods  as  are  the  most 
effective  to  achieve  a  legitimate  end,  and  it  is  not  obliged 
to  refrain  from  using  means  which  are  the  most  direct 
and  efficient  because  there  are  other  more  inadequate 
and  roundabout  but  less  drastic  methods  also  available. 
The  question  to  decide  is,  whether  or  not  excess  con- 
demnation is  so  much  better  adapted  to  secure  the  object 
for  which  the  city  is  striving  as  to  warrant  the  more 
vigorous  invasion  of  private  property  rights  which  it 
involves,  as  against  the  other  methods,  particularly  the 
condemning  of  an  easement,  which  might  be  used.  As 
was  suggested  before,  it  is  a  question  of  degree:  is  the 
efficiency  gained  through  this  particular  policy  of  fur- 
thering public  improvements  for  the  general  welfare 
more  than  worth  the  sacrifice  of  the  freedom  from  dis- 


14  EXCESS  CONDEMNATION 

turbance  in  the  enjoyment  of  private  property  rights 
which  it  involves?  It  is  a  question  which  will  never  be 
settled  to  the  satisfaction  of  every  one.  It  is  a  question 
which  cannot  be  answered  at  all  by  a  resort  to  theory  and 
speculation,  but  only  by  an  intelligent  comparison  of  the 
actual  working  of  excess  condemnation  with  that  of 
the  rival  schemes  proposed  by  its  opponents. 

Excess  condemnation  for  purposes  of  making  money 
for  the  city  or  state  involves  a  principle  radically  differ- 
ent from  excess  condemnation  used  for  the  purpose  of 
securing  adequate  protection  to  public  improvements. 
Here  the  city  condemns  private  property  for  the  pur- 
pose of  financial  g^in.  There  need  be  no  restrictions' 
placed  upon  the  use  to  which  the  surplus  land  may  be 
put  when  the  city  parts  with  it.  That  property  may 
be  covered  with  grotesque  and  hideous  structures  or 
crowded  with  skyscrapers  or  tenements.  The  usual 
words  of  the  statutes  embodying  this  type  of  excess 
condemnation  are  that  the  surplus  land  rnay  be  leased 
or  sold  "  with  or  without  suitable  restrictions."  That  is 
to  say,  if  the  imposition  of  suitable  restrictions  seems 
likely  to  endanger  the  profitable  disposition  of  the  excess 
land,  the  city  is  quite  at  liberty  to  dispose  of  that  land 
without  imposing  those  restrictions.  It  cannot  there- 
fore be  declared  that  the  excess  land  condemned  under 
this  liberal  policy  is  taken  for  any  public  purpose  directly 
connected  with  the  creation  or  protection  of  the  improve- 
ment. Excess  condemnation,  when  used  as  a  purely 
financial  expedient,  cannot  be  defended  upon  the  prin- 
ciple which  justified  it  in  the  foregoing  instances  —  that 
it  merely  involves  the  taking  of  private  property  for 
a  purpose  intimately  related  to  the  larger  project  under 
construction. 

It  might,  of  course,  be  urged  that  this  surplus  land 


THEORY  OF  EXCESS  CONDEMNATION     15 

is  appropriated  for  a  purpose  incidental  to  that  of  the 
main  improvement,  since  it  is  resorted  to  in  order  to 
lessen  the  cost  to  the  city  of  the  entire  undertaking,  and 
to  lessen  it  merely  by  taking  part  of  the  value  which  the 
money  of  the  city  has  created.  But  on  the  other  hand 
if  the  city  may  condemn  land  in  excess  solely  because 
it  needs  the  money  which  it  hopes  to  make  from  the  resale 
of  the  land,  where,  it  may  well  be  asked,  is  the  land 
which  the  city  may  not  properly  take  for  such  a  pur- 
pose? While  the  property  of  every  citizen  may  be  taxed 
for  the  purpose  of  securing  public  revenue,  it  has  never 
yet  been  suggested,  in  this  country,  that  an  empty  treas- 
ury could  justify  the  public  authorities  in  depriving  a 
man  of  his  property  by  right  of  eminent  domain. 

No  serious  attempt  has  ever  been  made  to  defend 
the  use  of  excess  condemnation  for  financial  purposes 
upon  such  a  flimsy  ground  as  that  just  mentioned.  The 
policy  rests,  instead,  upon  the  underlying  principle  that 
it  is  a  direct  and  effective  method  of  intercepting  a 
portion  of  that  increment  of  value  which  the  city,  by 
its  own  enterprise  and  money,  creates.  In  other  words, 
when  the  city  condemns  land  in  excess  and  makes  a 
profit  from  the  resale  of  such  land  it  does  not,  it  is 
asserted,  take  from  the  private  citizen,  because  it  needs 
it,  something  which  belongs  to  him;  it  merely  adopts 
the  most  effective  plan  for  preventing  that  private  citi- 
zen from  taking  for  his  own  use  a  money  value  which 
the  public  has  itself  produced  by  the  expenditure  of  its 
own  money,  and  which,  therefore,  does  not  by  any  sound 
theory  of  justice  belong  to  him.  In  the  apt  phrase  of 
a  well-known  student  of  the  problem. 

The  state  says :  "  We,  the  state,  purpose  to  spend  taxpayers' 
money  upon  your  land,  as  a  result  of  which  a  certain  portion 


i6  EXCESS  CONDEMNATION 

of  your  land  which  is  not  required  for  the  particular  work  in 
hand  will  be  greatly  benefited  in  value.  This  benefit  will  not 
be  an  unearned  increment,  but,  on  the  contrary,  it  will  be 
an  earned  increment.  That  earning  will  not  be  your  earning, 
but  an  earning  by  money  paid  by  taxpayers.  We  propose 
that  they  who  sow  shall  reap  and  that  the  taxpayers'  money 
having  produced  the  increment,  the  taxpayers  shall  receive  the 
return,  through  the  state."  ...  In  the  case  of  excess  condem- 
nation nothing  is  taken  from  the  individual  for  which  he  is 
not  paid.  He  is  paid  well,  and,  in  fact,  overpaid  in  the  ma- 
jority of  cases  of  condemnation  of  land  for  any  purpose. 
There'  is  taken  from  him,  without  return,  the  hope  of  an  in- 
crease that  may  come  through  the  expenditure  of  the  public's 
money.' 

It  is  unnecessary,  for  the  purposes  of  this  study,  to 
discuss  the  social  justice  of  securing  to  the  public  as 
large  a  portion  as  possible  of  the  increment  of  value 
created  by  public  improvements.  The  United  States  has 
probably  done  as  little  as  any  civilized  country  to  see  to 
it  that  the  state  or  city  shall  retain  even  a  part  of  this 
increase  in  value.  And  yet  there  are  not  many  who  are 
prepared  to  deny  the  essential  soundness  of  the  principle 
that  those  who  create  value  by  an  expenditure  of  effort 
and  money  have  the  fairest  claim  to  the  enjoyment  of 
that  value,  and  that  this  holds  true  not  only  of  private 
persons  but  of  states  and  cities. 

There  are  many  students  of  social  and  economic  prob- 
lems who  feel  that  the  public  is  entitled  to  a  share,  at 
least,  of  the  so-called  unearned  increment  of  land  value 
caused  not  by  any  definite  public  enterprise  but  by  the 
normal  growth  and  expansion  of  the  community.  Far 
stronger  than  this  is  the  right  of  the  city  or  state  to 

^  Andrew  Wright  Crawford,  in  the  Proceedings  of  the  Second 
National  Conference  on  City  Planning,  1910,  pp.  155-156. 


THEORY  OF  EXCESS  CONDEMNATION     17 

take  the  increment  of  value  which  it  definitely  earns  by 
the  outlay  of  public  money  in  public  improvements. 

While  there  may  be  little  dispute  as  to  the  right  of  the 
public  to  enjoy  the  profit  or  recoupment  which  it  is 
the  aim  of  excess  condemnation  to  secure,  there  is,  how- 
ever, wide  difference  of  opinion  as  to  whether  excess 
condemnation  is  the  fairest  method  of  acquiring  that 
profit  for  the  city.  Its  opponents  attack  it  as  an  illegiti- 
mate means  of  doing  a  legitimate  thing.  The  same 
general  objection,  in  fact,  is  made  to  the  use  of 
excess  condemnation  as  a  profit-making  scheme  as 
was  urged  against  it  when  used  for  the  purpose  of 
protecting  public  improvements.  The  objection  is  that, 
as  a  method  designed  to  accomplish  effectively  the 
highly  salutary  aim  in  view,  excess  condemnation  in- 
terferes with  the  rights  of  property  owners  unjusti- 
fiably and  wantonly,  since  it  goes  very  far  beyond  what 
is  reasonably  necessary.  Every  citizen  is  entitled  to  free- 
dom from  such  interference  with  his  liberty  and  prop- 
erty as  is  not  fairly  demanded  by  the  paramount  interests 
of  the  whole  community.  If  there  are  other  methods 
available  by  which  the  same  purpose  can  be  carried  out 
eflfectively  and  which  are  less  subversive  of  individual 
rights  and  privileges,  it  is  impossible  to  justify,  upon  any 
sound  theory,  the  use  of  so  drastic  a  measure  as  excess 
condemnation. 

There  are  at  least  two  important  methods  besides  ex- 
cess condemnation  by  which  the  city  may  secure  some 
portion,  at  least,  of  the  increment  of  value  resulting  from 
the  construction  of  public  improvements.  The  first  of 
these  is  the  familiar  system  of  levying  special  assess- 
ments or  betterment  taxes.  A  special  assessment  is  a 
payment  for  benefit  received.  When  the  city  undertakes 
an  improvement  which  definitely  and  immediately  bene- 


i8  EXCESS  CONDEMNATION 

fits  the  property  of  the  adjacent  owners,  it  assesses  upon 
such  property,  in  proportion  to  the  benefit  received,  a 
part  of  the  cost  of  the  work.  This  is  the  well-estab- 
lished plan  by  which  most  American  cities  pay  at  least  a 
portion  of  the  cost  of  making  and  improving  their  streets 
and  sometimes  their  parks.  Frequently  these  special 
assessments  are  levied  only  upon  property  which  immedi- 
ately fronts  upon  the  improvement.  There  is  no  reason, 
however,  from  the  standpoint  of  theory,  why  any  prop- 
erty, regardless  of  its  location,  which  can  be  shown  to 
be  measurably  benefited  by  the  public  work  should 
not  be  assessed  its  proper  share  of  the  cost.  In  some 
cities  this  has  been  done,  but  in  general  our  municipali- 
ties have  levied  these  assessments  rather  conservatively. 
It  is  unquestionably  true  that,  almost  everywhere,  this 
method  of  turning  back  to  the  public  treasury  a  portion 
of  the  value  which  the  pubHc  creates  by  its  improve- 
ment could  be  used  rnore  effectively  than  at  present. 

An  important  limitation,  however,  is  imposed  upon 
the  levying  of  special  assessments,  and  it  is  because  of 
this  that  those  who  urge  excess  condemnation  as  a  finan- 
cial expedient  regard  it  as  a  halfway  measure.  By 
almost  universal  statutory  limitation  and  well  established 
practice,  the  city  is  not  allowed  to  levy  special  assess- 
ments beyond  the  total  cost  of  making  the  improve- 
ment.^   Usually  an  even  smaller  amount  is  secured,  for 

8  It  would  perhaps  be  going  too  far  to  call  this  limitation  a  fun- 
damental rule  of  law.  Statements  are  found,  both  in  Cooley  and 
in  "  Cyc,"  that  an  assessment  should  be  limited  to  the  cost  of  the 
improvement,  and  that  property  owners  would  have  the  right  to 
demand  the  return  pro  rata  of  any  sums  collected  in  excess  of  such 
cost.  Cooley  on  Taxation,  p.  1263;  28  "Cyc,"  1155.  The  cases 
cited  in  support  of  this  statement  involve,  however,  the  interpreta- 
tion of  statutes  authorizing  the  levsnng  of  assessments  in  order  to 
meet  the  cost  of  improvements.  In  such  a  case  the  limitation  is 
purely  statutory.     No  case  appears  in  which  a  city  has  made  a 


THEORY  OF  EXCESS  CONDEMNATION    .19 

in  many  states  the  law  does  not  permit  the  assessing 
of  the  entire  cost  of  the  improvement  upon  the  spe- 
cially benefited  property  owners.  But  nowhere,  so  far 
as  can  be  discovered,  does  the  city  make  a  money  profit 
by  this  method.  The  property  owner  therefore  pays 
back  to  the  city,  not  the  amount  of  the  accretion  in  the 
value  of  his  property  nor  any  fixed  proportion  thereof, 
but  a  certain  proportion  of  the  money  cost  of  construct- 
ing the  improvement.  The  city  does  not  attempt  to  do 
any  more  than  break  even  on  its  undertaking.  It  is 
easy  to  see,  therefore,  that  under  our  modern  system  of 
special  assessments  the  city  does  not  secure  all  of  the 
profit  or  increment  of  value  which,  by  the  expenditure  of 
public- money,  it  has  created  and  to  which  in  pure  theory 
it  is  fairly  entitled.  All  profit  over  and  above  the  cost 
of  construction,  profit  which  the  city  might  hope  to 
obtain  by  a  judicious  use  of  excess  condemnation,  is 
discarded  by  the  very  nature  of  the  special  assessment 
system.  While  it  will  be  of  interest  later  on  to  view 
this  policy  more  closely,  it  is  enough  to  observe  here  that 
by  reason  of  the  limitation  referred  to  it  differs  essen- 
tially from  excess  condemnation,  and  from  the  stand- 
point of  theory,  at  least,  it  can  hardly  be  regarded  as  a 
successful  competitor  of  that  policy. 

There  is  another  method  of  securing  the  increment 
of  value  which  the  city  earns  by  making  public  improve- 
ments, and  this  method  is  not  subject  to  any  such  limi- 
tation as  that  imposed  upon  the  levying  of  special  assess- 
ments.    It  is  a  type  of  increment  tax.     It  is  not  a  policy 

deliberate  attempt  to  assess  the  full  amount  of  the  benefits  accruing 
to  private  property  in  order  to  make  a  profit  for  the  city  over  and 
above  the  cost  of  the  improvement.  The  restriction  of  assessments 
to  costs  is  so  well  established  and  so  universal  in  application,  how- 
ever, that  it  may  be  regarded  as  a  characteristic  feature  of  the 
American  system  of  special  assessments. 


20  EXCESS  CONDEMNATION 

with  which  American  cities  have  had  experience,  but  it 
has  been  used  in  several  of  the  countries  of  Europe. 
It  is  similar  to  the  special  assessment  in  that  it  may 
be  collected  from  those  whose  property  has  been  measur- 
ably increased  in  value  by  a  public  improvement.  It 
differs  from  a  special  assessment  in  that  the  amount  of 
the  charge  is  limited,  not  by  the  cost  of  making  the  im- 
provement but  by  the  amount  of  money  benefit  which 
accrues  to  private  property.  While  it  has  been  custom- 
ary, in  the  places  where  this  tax  has  been  levied,  to 
collect  only  a  certain  percentage  of  the  increase  in  value, 
there  seems  to  be  no  reason,  in  theory,  why  the  city  or 
state  need  stop  at  that  point.  It  is  conceivable  that 
every  dollar  of  value  created  by  the  expenditure  of 
public  money  could,  by  the  effective  imposition  of  such 
a  tax,  be  recovered  back  into  the  public  treasury.  The 
practical  problems  connected  with  the  assessing  and  col- 
lecting of  such  a  tax  need  not  concern  us  here;  but  it 
is  a  scheme  which,  in  principle  at  least,  gives  to  the  city 
as  much  of  the  increment  of  value  fairly  belonging  to 
it  as  does  excess  condemnation :  namely,  all  of  it. 

There  is  a  considerable  difference,  however,  in  the 
extent  to  which  the  increment  tax  and  excess  condem- 
nation affect  the  rights  and  privileges  of  private  citizens. 
It  is  at  this  point,  of  course,  that  the  bitterest  attack 
is  made  by  the  opponents  of  excess  condemnation.  The 
increment  tax,  it  is  asserted,  compels  the  property  owner 
to  give  over  to  the  city  that  which  the  city  has  earned 
and  can  fairly  claim.  He  loses  nothing  that  was  ever 
his.  He  is  merely  prevented  from  enjoying  an  expected 
benefit  which  never  belonged  to  him  and  which  he  had 
no  more  share  in  producing  than  any  other  member  of 
the  community.  He  is  in  the  position  of  a  man  who  had 
hoped  that  a  rich  relative  would  bequeath  him  a  sum  of 


THEORY  OF  EXCESS  CONDEMNATION     21 

money  and  was  disappointed.  He  is  certainly  no  worse 
off  than  he  was  before.  The  city,  morever,  has  received 
on  behalf  of  the  taxpayers  all  that  the  taxpayers'  money 
has  been  able  to  earn.  Under  excess  condemnation,  on 
the  other  hand,  the  city  gains  nothing  which  the  incre- 
ment tax  could  not  give  to  it.  This  is  assuming,  of 
course,  that  excess  condemnation  is  employed  for  the 
sole  purpose  of  financial  gain.  By  condemning  surplus 
land  and  reselling  or  leasing  it,  it  is  apparent,  by  the 
simple  process  of  subtraction,  that  the  city  gains  the 
amount  by  which  the  value  of  this  surplus  land  has 
increased.  It  could  not,  in  the  nature  of  the  case,  gain 
more  than  that.  The  citizen  whose  property  is  thus 
condemned,  as  in  the  case  of  the  increment  tax,  is  barred 
from  the  enjoyment  of  an  increment  of  value  which 
the  city,  and  not  he,  created,  and  of  this  he  cannot 
justly  complain.  But  in  addition  to  this  he  does  lose 
something  which  was  his  before.  He  loses  possession 
of  his  particular  piece  of  property.  He  loses  his  loca- 
tion in  the  neighborhood  or  business  district.  He  may 
have  no  absolute  assurance  that  he  can  ever  recover  it. 
The  city  acquires  full  title  to  his  land.  It  may  subse- 
quently dispose  of  it  by  private  contract  or  auction,  but 
may  be  under  no  obligation  to  sell  it  back  to  him.  He 
may  be  obliged  to  go  elsewhere,  to  buy  or  build,  and  at 
great  inconvenience,  not  measurable  always  in  money 
damages,  to  reestablish  himself  in  a  new  location.  He 
may  even  be  obliged  to  move  to  such  a  distance  that  he 
will  derive  only  the  most  remote  and  most  theoretical  ben- 
efit from  the  public  improvement  which  has  caused  his 
misfortune.  He  may  be  worse  off  than  he  was  before; 
and  all  because  he  was  unlucky  enough  to  own  property 
the  value  of  which  happened  to  be  increased  by  an  im- 
provement which  may  have  been  made  quite  against  his 


22  EXCESS  CONDEMNATION 

wishes.  The  city  does  not  content  itself  with  seeing  that 
he  does  not  enjoy  an  increase  in  the  value  of  his  property 
—  it  penalizes  him  for  being  the  owner  of  that  property. 
The  city  says  to  him,  "We  must  be  sure  that  you  get 
nothing  from  your  land  which  you  did  not  earn  and 
which  we  did  earn,  and,  in  order  to  make  sure  of  that, 
we  will  take  that  land  of  yours  away  from  you  and, 
if  necessary,  we  will  sell  it  to  some  one  else."  Here, 
it  is  urged,  is  an  unnecessary  invasion  of  the  sacred 
rights  of  private  property  which  it  is  impossible  to  de- 
fend or  justify. 

There  is  no  denying  the  cogency  of  this  argument, 
if  the  premises  are  admitted.  If  it  is  true  that  the 
increment  tax  can  be  utilized  as  efficiently  as  excess 
condemnation,  and  with  as  adequate  results,  to  secure 
the  profit  which  is  justly  due  to  the  city  or  state,  then 
it  is  difficult  to  see  how  the  added  interference  with  pri- 
vate rights  which  excess  condemnation  involves  can  be 
defended  or  excused.  But  this  is  an  assumption  which 
the  advocates  of  excess  condemnation  do  not  accept. 
They  regard  the  policy  of  excess  condemnation  as  the 
most  effective  and  certain  method  of  securing  the  incre- 
ment of  value  which  belongs  to  the  city.  The  inconveni- 
ence and  loss  which  must  be  borne  by  property  owners 
in  the  execution  of  such  a  scheme  are  fully  justified 
by  the  added  benefit  to  the  community  of  using  the  most 
practical  and  adequate  method  for  the  accomplishment 
of  the  aim  in  view.  And  so  this  controversy  also  hinges 
upon  the  practical  working  efficiency  of  the  two  plans, 
a  balancing  of  public  convenience  over  against  private 
inconvenience. 

In  the  foregoing  pages  it  has  been  brought  out  that 
excess  condemnation  is  employed  for  the  accomplishment 
of  different  purposes  —  the  eradication  of  the  evil  of 


THEORY  OF  EXCESS  CONDEMNATION     23 

land  remnants,  the  protection  of  public  improvements 
from  disfigurement  and  injury,  the  securing  to  the  pubHc 
of  the  value  actually  created  by  the  use  of  the  public's 
money.  It  has  been  evident,  however,  that  in  the  accom- 
pHshment  of  these  aims  there  may  be  a  choice  of  means ; 
and  that  to  say  that  the  city  ought  to  protect  public 
improvements  or  intercept  the  increment  of  value  created 
by  its  public  works,  is  very  far  from  saying  that  it  ought 
to  employ  excess  condemnation  as  a  means  to  those  ends. 
One  is  obliged  to  conclude  that  whether  excess  condem- 
nation is  the  fairest  and  wisest  method  of  carrying  out 
these  purposes  will  depend  upon  how  much  more  effi- 
cient, if  any,  it  is,  in  actual  operation,  than  the  rival 
schemes  which  involve  a  less  drastic  invasion  of  pri- 
vate rights.  The  following  chapters  attempt  to  analyze 
the  actual  operation  of  excess  condemnation,  with  a  view 
to  determining  its  advantages  and  disadvantages  as  a 
working  program,  and  its  actual  value  as  a  means  of  ac- 
complishing the  purposes  for  which  it  is  designed. 


CHAPTER  II 

EXCESS   CONDEMNATION  AND  THE  PROBLEM   OF 
REMNANTS   OF   LAND 

The  general  nature  of  the  problem  of  remnants  of 
land  has  already  been  sketched  in  broad  terms.^  The 
evil  of  lot  remnants  is  a  very  old  evil,  and  furthermore 
it  is  one  which  bids  fair  to  persist  even  in  spite  of  the 
vi^isest  of  preventive  measures.  It  is  true  that  remnants 
are  left  in  a  vast  number  of  cases  simply  because  a 
city  planned  its  streets  badly  or  failed  to  plan  them  at 
all;  but  it  is  equally  true  that  many  street  openings  and 
widenings  which  leave  a  fringe  of  useless  fragments 
of  land  in  their  wake  are  necessitated  by  developments 
in  the  growth  of  the  city  that  no  human  intelligence 
could  have  foretold  when  those  highways  were  laid  out. 
For  one  or  the  other  of  these  reasons,  there  is  scarcely 
a  city  in  the  land  some  of  the  streets  of  which  are  not 
marred  by  these  unsightly  left-overs.  There  is  certainly 
no  gainsaying  the  very  general  prevalence  of  the  evil  of 
remnants  of  land  and  the  pressing  character  of  the 
problem   of   what   to   do   with  them. 

There  are  two  ways  in  which  remnants  of  land  may 
be  caused  in  the  construction  of  a  public  improvement. 
The  first  of  these  is  by  widening  an  existing  highway  or 
public  place,  or  by  opening  a  new  street  running  closely 
parallel  to  the  lines  of  an  old  one.  Ordinarily  city 
real  estate  is  plotted  in  a  sort  of  checkerboard  fashion, 

*  Supra,  p.  7. 

24 


PROBLEM  OF  REMNANTS  OF  LAND       25 

so  that  each  owner  has  a  square  or  rectangle  of  land. 
This  means,  of  course,  that  the  boundary  lines  which 
separate  the  plots  of  land  abutting  on  the  same  street 
will  lie  at  right  angles  to  the  street  line.  Obviously, 
a  widening  of  the  street  will  not  change  this  condition, 
and  there  is  not  much  danger,  therefore,  that  such  an 
improvement  will  leave  odd-shaped  fragments  of  land 
scattered  here  and  there  along  its  length.  In  fact,  it 
frequently  happens  that  an  old  street  may  be  widened 
without  leaving  any  fragments  of  land  which  are  not 
readily  usable.  This  is  quite  likely  to  be  the  case  when 
the  widening  is  moderate  in  scope  and  the  amount  of 
new  land  used  for  the  purpose  is  taken  equally  from  the 
property  on  both  sides  of  the  street.  In  some  instances, 
however,  the  widening  is  extreme  or  conditions  demand 
that  all  the  land  necessary  to  it  be  taken  from  one  side 
of  the  street.  In  crowded  districts,  where  the  individual 
lots  are  not  very  deep,  this  may  easily  result  in  leaving 
the  abutting  owners  with  plots  of  land  as  wide  as  they 
were  before,  but  only  a  few  feet  in  depth.  In  other 
words,  the  newly  widened  street  may  be  skirted  along 
its  entire  length  on  one  side,  or  even  on  both  sides,  by  a 
strip  of  land,  still  parceled  out  to  separate  owners, 
which  is  so  shallow  as  to  be  perfectly  useless  for  any 
purpose  except  the  erection  of  billboards  or  a  fence. 

This  is  precisely  what  happened  not  long  ago  in  con- 
nection with  an  important  project  in  the  city  of  New 
York.  In  order  to  make  a  suitable  approach  for  the 
Williamsburg  Bridge  over  the  East  River,  it  was  found 
necessary  to  widen  Delancey  Street  and  open  a  continu- 
ation of  it,  west  of  the  Bowery,  which  is  now  known 
as  Kenmare  Street.  When  this  improvement  had  been 
completed  it  was  found  that  the  newly  improved  high- 
yvay  was  skirted  for  a  distance  of  many  rods  by  strips 


26  EXCESS  CONDEMNATION 

of  land  not  more  than  ten  feet  deep  and  in  some  instances 
with  an  average  depth  of  less  than  one  foot.  The  own- 
ers of  these  useless  remnants  were  not  only  quite  unable 
longer  to  enjoy  the  substantial  privileges  of  an  abutting 
owner  on  the  street,  but  could  prevent  anybody  else 
from  enjoying  those  privileges.^  It  is  unnecessary  to 
multiply  examples  of  situations  of  this  kind.  It  is 
apparent  that  they  may  arise  anywhere  in  connection 
with  the  construction  of  many  kinds  of  useful  improve- 
ments. Remnants  of  this  character  may  not,  it  is  true, 
be  created  so  frequently  as  those  which  arise  in  other 
ways,  but  when  they  do  occur  they  are  likely  to  close 
in  around  the  street  or  public  place  with  an  appalling 
completeness,  and  their  effect  upon  the  interests  of 
every  one  is  doubly  devastating. 

Usually,  however,  remnants  of  land  are  created  in 
a  slightly  different  manner,  although  their  general  effect 
may  be  similar  to  that  which  has  just  been  described. 
In  the  checkerboard  system  of  streets  and  private  lots 
so  common  in  our  American  cities,  it  is  obvious  that 
a  new  highway   cannot  be   opened  diagonally  through 

2  Cited  by  Herbert  S.  Swan  in  Excess  Condemnation  —  A  Report 
of  the  Committee  on  Taxation  of  the  City  of  New  York,  along  with 
several  other  interesting  instances  of  the  same  thing,  compiled  from 
the  records  of  the  Department  of  Taxes  and  Assessments  of  New 
York  City,  pp.  13-14. 

A  striking  example  of  this  sort  of  land  remnant  was  recently  left 
in  a  Pacific  coast  city.  A  project  of  street  widening  and  straight- 
ening was  worked  out,  and  resulted  in  leaving  a  newly  opened  sec- 
tion of  street  separated  from  an  old  street,  parallel  thereto,  by  a 
remnant  of  land  just  wide  enough  to  allow  the  brick  wall  of  a  two 
story  building  142  feet  in  length  to  remain  standing.  The  wall 
was  promptly  utilized  for  billboard  advertising.  It  is  doubtless  the 
purpose  of  the  city  ultimately  to  close  the  old  street,  but  in  the 
meantime  this  unsightly  remnant  remains.  This  example  is  cited 
by  Charles  K.  Mohler  in  an  interesting  article  on  "  Excess  Con- 
demnation and  City  Planning,"  Engineering  News,  1916,  Vol.  76, 
pp.  20-22. 


PROBLEM  OF  REMNANTS  OF  LAND       27 

a  plotted  section  without  transforming  the  plots  of  land 
through  which  it  passes  from  rectangles  and  squares  into 
odd-shaped  polygons,  and  without  leaving  in  its  wake 
small  wedge-shaped  fragments.  Sometimes  these  rem- 
nants are  so  small  as  to  be  entirely  useless;  in  other 
cases  they  are  fit  only  for  uses  which  mar  the  beauty  of 
their  surroundings  and  impair  the  usefulness  of  the 
whole  district.  They  may  not,  and  usually  do  not,  front 
the  entire  length  of  the  highway  in  an  unbroken  line, 
but  loom  up  at  frequent  intervals,  unsightly  hindrances 
to  its  proper  development.  In  the  cities  of  Germany 
considerable  care  is  taken,  when  streets  are  opened  or 
land  is  replotted,  to  keep  in  view  as  much  as  possible  the 
old  lines  of  private  plots,  so  that  the  remnants  left  may 
be  as  few  and  as  little  hurtful  as  possible ;  but  even  such 
careful  attention  does  not  suffice  adequately  to  solve 
this  vexing  problem.^  As  a  general  rule  in  this  country, 
however,  no  such  precautions  are  taken  and  as  a  con- 
sequence the  evil  is  prevalent  here  in  its  most  aggravated 
form.* 

The  injury  resulting  from  these  remnants  of  land  is 
easily  apparent.  There  are,  in  fact,  four  different  ways 
in  which  the  continued   and  uncontrolled  existence  of 

3  Kissan,  B.  W.,  Report  on  Town  Planning  Enactments  in  Ger- 
many, Par.  7. 

*  In  opening  some  of  the  sections  of  Fairmount  Parkway,  the 
city  of  Philadelphia  has,  in  several  instances,  made  a  distinct  jog 
in  the  lines  of  the  parkway  so  as  to  include  in  it  some  of  these  little 
triangles  which,  if  left  outside,  would  have  been  unsightly  remnants. 
These  fragments  were  thus  taken  as  a  part  of  the  parkway,  and 
not  as  remnants,  and  they  are  being  maintained  as  parked  spaces. 
This  is  shown  clearly  on  the  plan  of  Fairmount  Parkway,  in  the 
24th  Annual  Report  of  the  City  Parks  Association  of  Philadelphia, 
1912.  While  this  means  of  dealing  with  lot  remnants  miglit  be 
used  to  a  limited  extent  in  opening  parks  or  boulevards,  it  could 
not  adequately  meet  the  problem  where  it  is  most  acute,  namely, 
in  the  opening  or  widening  of  streets  in  congested  districts. 


28  EXCESS  CONDEMNATION 

these    fragments    is   detrimental   to   public   and   private 
interests. 

In  the  first  place,  these  remnants  are  a  menace  to  the 
public  welfare  since  they  tend  to  defeat  the  purpose  for 
which  the  improvement  which  caused  them  was  made, 
and  actually  obstruct  the  development  of  the  neighbor- 
ing property.  The  fact  that  they  are  unsightly  and  usu- 
ally unadapted  for  any  legitimate  use  not  only  makes 
them  undesirable  to  own,  but  makes  the  property  around 
them  less  desirable  to  own.  The  man  who  is  left,  after 
a  street  widening,  with  a  plot  of  land  having  a  frontage 
of  sixty  feet  and  a  depth  of  five  feet,  cannot  use  that 
land  himself,  cannot  secure  any  benefit  from  the  im- 
provement of  the  street,  and,  at  the  same  time,  he  is  so 
situated  that  his  neighbor  in  the  rear,  who  ought  nor- 
mally to  be  an  abutting  owner  on  the  line  of  the  im- 
provement, is  completely  shut  off  from  any  participation 
in  the  value  of  the  improvement.  He  does  not  even 
have  access  to  it.  Furthermore,  a  man  who  is  planning 
to  invest  his  money  in  a  fine  home  or  place  of  business 
is  anxious  to  locate  in  a  district  where  there  are  suit- 
able neighbors  and  attractive  physical  surroundings. 
He  wishes  to  live  where  there  are  other  fine  homes  or 
where  other  high-grade  business  houses  have  been 
erected.  When  a  highway  is  opened  and  numerous  rem- 
nants of  land  are  left  along  its  length,  the  kind  of  abut- 
ting property  owners  which  it  was  aimed  to  attract, 
and  which  are  necessary  in  order  properly  to  develop 
it,  will  be  exceedingly  reluctant  to  locate  on  it  as  long  as 
they  are  unprotected  from  the  type  of  neighbors  and 
surroundings  which  these  fragments  so  frequently  attract. 
The  result  is  that  less  desirable  buildings  are  gradually 
erected,  and  the  thoroughfare,  more  or  less  unsightly  in 
appearance  and  marred  by   frequent  eyesores,  acquires 


PROBLEM  OF  REMNANTS  OF  LAND       29 

the  reputation  of  being  a  relatively  low-grade  street. 
The  city  finds  that  its  outlay  of  money,  instead  of  result- 
ing in  the  development  of  a  high-class  residence  or  busi- 
ness thoroughfare,  has  produced  merely  another  of  the 
motley,  nondescript  and  thoroughly  unattractive  streets 
which  are  the  despair  of  every  person  having  an  appre- 
ciation of  civic  beauty. 

The  second  injury  resulting  from  remnants  of  land  is 
the  natural  outgrowth  of  the  first  —  a  definite  financial 
loss  to  the  city.  In  the  first  place,  when  the  city  con- 
demns part  of  a  man's  lot  and  leaves  an  unusable  re- 
mainder, it  does  not  as  a  rule  get  all  that  it  pays  for.  In 
actual  practice  the  compensation  which  the  city  pays,  in 
most  cases  of  this  kind,  is  equal  to  the  value  of  the  entire 
parcel.^  Viewed  from  the  standpoint  of  the  owner,  who 
is  left  with  a  worthless  fragment  of  land  or  building  on 
his  hands,  this  is  fair  enough.  The  city,  however, 
although  it  pays  for  the  whole  lot,  takes  only  the  part  it 
uses.  This,  in  itself,  is  bad  bargaining.  In  the  second 
place,  the  city  usually  seeks  to  pay  at  least  part  of  the 
cost  of  the  improvement  by  special  assessments,  and  here 
the  existence  of  the  remnant  presents  a  real  difficulty. 
It  is  a  well-established  rule  of  law  that  an  owner  is 
entitled  to  compensation  for  the  injury  to  the  remainder 
of  a  lot  from  which  a  piece  is  taken  and  that  such  dam- 
ages may  be  set  oflf  against  benefits  sought  to  be  assessed.^ 
It  may  be,  therefore,  that  these  damages  will  cancel  or 
even  exceed  any  assessments  which  might  be  levied  on  a 
remnant.  Furthermore  the  remnant,  destroying  as  it 
does  some  of  the  benefits  which  would  otherwise  accrue 

^  Mr.  Lawson  Purdy,  president  of  the  Board  of  Commissioners 
of  Taxes  and  Assessment  of  New  York  City,  states  that  this  is 
very  apt  to  occur  in  such  cases  of  condemnation  in  New  York 
City. 

8  Nichols.  The  Power  of  Eminent  Domain,  pp.  269,  276. 


30  EXCESS  CONDEMNATION 

to  the  adjoining  property,  will  have  a  distinct  tendency  to 
reduce  the  amount  which  the  city  might  normally  assess 
to  such  property.  But  this  is  not  all.  When  these  rem- 
nants result,  as  has  been  shown,  in  preventing  the  devel- 
opment of  the  surrounding  district  and  causing  it  ulti- 
mately to  be  less  attractive  and  desirable,  the  city  loses 
a  considerable  portion  of  what  it  would  otherwise  have 
gained  in  increased  taxes.  The  city  probably  contem- 
plated a  marked  increase  in  the  assessable  value  of  the 
land  and  buildings  in  the  district  caused  by  the  creation 
of  a  valuable  improvement.  It  finds,  instead,  that  land 
values  are  held  down  almost  to  the  original  mark,  as  a 
result  of  the  remnants  of  land.  It  is  thus  unable  to 
recoup  to  itself  any  considerable  portion  of  the  cost  of 
the  improvement  out  of  the  expected  increase  in  the  tax 
duplicate.  It  is  probably  true  that  the  city  seldom  pays 
out  more  money  when  it  condemns  part  of  a  man's  land 
than  it  would  if  it  took  it  all ;  but  in  face  of  the  fact  that 
it  frequently  pays  quite  as  much,  and  at  the  same  time, 
by  leaving  a  remainder,  definitely  diminishes  its  ability 
to  recoup  the  cost  of  the  improvement,  it  is  fair  to  say 
that  remnants  of  land  may  prove  to  be  a  source  of  actual 
money  loss  to  the  city. 

It  is  not  the  city  alone,  however,  that  is  a  material  loser 
through  the  evil  of  land  remnants.  The  owner  of  prop- 
erty adjacent  to  the  improvement  suffers  quite  as 
severely.  The  man  who  owns  the  remnant  is  often  in 
a  sorry  plight.  He  has  left  on  his  hands  a  parcel  of 
real  estate  which  he  cannot  use  efficiently,  which  he  may 
not  be  able  to  sell  profitably.  He  may  be  required  to  pay 
special  assessments  on  an  improvement  from  which  he 
has  been  and  will  always  be  unable  to  reap  any  substan- 
tial benefit.  As  a  rule,  he  cannot  realize  on  the  increased 
value  which  accrues  to  the  land.     The  damages  he  re- 


PROBLEM  OF  REMNANTS  OF  LAND       31 

ceives  may  indeed  cancel  his  assessments,  but  he  is  left 
with  a  well-nigh  worthless  fragment  of  land  which  he 
cannot  use  satisfactorily  and  which,  in  all  probability, 
he  cannot  sell  unless  his  immediate  neighbors  are  dis- 
posed to  buy,  since  the  fragment  he  still  owns  usually 
has  value  or  potential  value  only  because  it  is  capable  of 
being  absorbed  into  the  adjoining  estates. 

But  the  owner  of  the  remnant  is  no  worse  off  than 
his  neighbor.  Here  is  a  man  with  a  large  and  desirable 
lot  adjacent  to  the  new  or  improved  street,  who  finds 
himself  shut  off  from  it  by  this  fragment  of  land.  His 
property  is  denied  the  normal  increase  in  value  due  to  the 
improvement  because  of  this  unfortunate  mutilation  of 
his  neighbor's  plot.  He  has  been  obliged  to  pay  heavy 
assessments  to  defray  the  cost  of  the  improvement.  He 
has  received  no  damages,  since  the  blighting  presence  of 
an  adjoining  remnant  is  not  held  to  be  a  direct  and  meas- 
urable damage.  And  yet  the  benefits  which  have  been 
assessed  to  him  have  been  substantially  offset  or  de- 
stroyed by  the  undesirability  of  his  surroundings.  He 
not  only  suffers  direct  money  loss  in  this  way,  but  he  is 
also  precluded  from  making  the  most  effective  use  of  his 
property.  There  are  instances  in  the  city  of  New 
York  where  important  street  improvements  have  been 
completed  for  more  than  five  years  and  where  the  ade- 
quate development  of  the  street  has  not  yet  begun ;  where 
the  abutting  owners,  hedged  in  by  unsightly  remnants, 
can  put  their  property  to  no  better  use  than  they  could 
before  the  improvement  was  made.  Sometimes  a  street 
opening  or  widening  is  made  for  the  purpose  of  trans- 
forming a  poorer  class  residence  district  into  a  business 
district.  The  existence  of  remnants,  in  a  case  like  this, 
retards  the  development  of  the  street,  so  that  the  abutting 
owner  may  find  his  property  much  less  desirable  for  resi- 


32  EXCESS  CONDEMNATION 

dence  purposes  than  it  was  before,  but  not  as  yet  desir- 
able for  business  purposes.  The  street  has  ceased  to 
be  a  residence  street,  it  has  not  yet  become  a  business 
thoroughfare;  it  is  merely  nondescript.  The  owner  is 
worse  off  than  he  was  before.  He  has  paid  the  bill  in 
special  assessments ;  he  has  not  reaped  the  benefit.'^ 

The  fourth  evil  which  results  from  remnants  of  land 
has  already  been  hinted  at.  It  is  an  evil  which  injures 
both  the  city  and  the  owner  of  private  property.  It  is 
the  almost  inevitable  ugliness  of  these  misshapen  frag- 
ments. The  harm  done  is  perhaps  not  measurable  in 
dollars  and  cents,  but  it  is  none  the  less  serious.  No 
passer-by  can  be  unaware  of  its  blighting  effect.  It  is 
as  though  the  drawing-room  floor  in  a  beautiful  home 
remained  constantly  covered  with  the  refuse  left  by  the 
builders.  Remnants  of  land  are  the  shavings  and  the 
litter  of  city  planning,  and  unless  the  city  can  sweep  them 
up  and  dispose  of  them,  they  will  mar  the  beauty  of  their 
surroundings.  There  may  be  nothing  inherently  un- 
sightly about  a  small  triangle  of  land,  but  it  is  hideously 
inappropriate  to  a  street  fronted  with  residences  or  busi- 
ness houses.  Remnants  of  land  not  only  are  out  of  place, 
they  always  look  out  of  place.  They  lend  themselves, 
moreover,  to  the  most  unsightly  uses  to  which  real  estate 

^  The  author  is  indebted  to  Mr.  Lawson  Purdy,  President  of  the 
Board  of  Commissioners  of  Taxes  and  Assessments  of  New  York 
City,  for  a  striking  illustration  in  support  of  this  statement.  In 
1897  Lafayette  Street  near  Brooklyn  Bridge  was  widened  20  feet. 
This  left  a  remnant  on  the  block  running  north  from  the  corner 
of  Canal  and  Lafayette  Streets  which  was  91  feet,  7  inches  long  and 
I  foot,  5  inches  by  13  feet,  8  inches  deep.  A  lot  which  adjoined  this 
remnant  but  faced  on  Canal  Street,  a  lot  97  feet  by  23  feet,  was 
thus  prevented  from  abutting  upon  the  new  thoroughfare.  The 
remnant  was  not  merged  with  this  lot  by  private  sale  until  191 1, 
but  the  owner  of  the  Canal  Street  parcel  was  assessed  $2,626.72 
for  a  benefit  which  he  did  not  actually  enjoy  for  fourteen  years. 


PROBLEM  OF  REMNANtS  OF  LAND       33 

can  possibly  be  put.  It  is  unnecessary  to  elaborate  these 
uses  at  any  length.  Refuse  can  be  dumped  or  billboards 
erected  upon  almost  any  plot  of  land,  regardless  of  its 
size  or  shape;  while  hardly  less  objectionable  are  the  one- 
story  "  stands "  and  shanties  which  are  so  frequently 
erected  upon  such  fragments.  Of  course,  it  is  natural 
enough  that  remnants  of  land  should  be  put  to  these  ob- 
jectionable uses.  In  fact,  the  uglier  they  are  the  more 
easily  and  more  profitably  may  their  owners  be  able  to 
sell  them.  There  have  been  numerous  cases  where  the 
owner  of  a  remnant  of  land  has  used  it  in  the  most 
objectionable  way  in  order  that  he  might  extort  from  his 
outraged  neighbors,  by  this  pseudo-blackmail,  a  price  far 
in  excess  of  its  actual  value.  Remnants  of  land  are 
unsightly  enough  at  their  very  best;  under  such  circum- 
stances they  become  intolerable. 

To  review,  then,  the  indictment  which  may  be  framed 
against  remnants  of  land  in  connection  with  city  im- 
provements: such  fragments  seriously  interfere  with  the 
effective  development  of  the  property  adjacent  to  a 
public  improvement,  and  tend  thereby  to  defeat  the  pur- 
pose for  which  the  city  has  undertaken  the  project;  they 
result  in  a  definite  money  loss  to  the  municipality  through 
the  increase  in  damages  to  private  property  and  the  de- 
pressing of  land  values ;  they  are  a  source  of  loss  both 
to  those  who  own  them  and  to  those  who  own  property 
near  them,  and  prevent  both  classes  of  owners  from 
eflFectively  using  their  property  or  enjoying  the  full  bene- 
fit of  the  improvement  for  the  cost  of  which  they  are 
assessed ;  finally,  remnants  of  land  are  by  their  very 
nature  ugly  and  almost  any  use  to  which  they  can  be  put 
makes  them  more  so. 

It  is  quite  natural,  therefore,  that  a  number  of  methods 
should  have  been  devised  from  time  to  time  to  solve  a 


34  EXCESS  CONDEMNATION 

problem  so  general  and  so  acute  as  this  one.  Before  dis- 
cussing excess  condemnation  as  a  means  of  dealing  with 
remnants  of  land,  it  will  be  worth  while  to  consider  the 
other  methods  suggested  to  accomplish  the  same  purpose. 

The  first  method  is  that  of  replotting  the  property 
abutting  on  an  improvement  so  as  to  do  away  with  the 
remnants,  and  to  accomplish  this  replotting  through  the 
voluntary  cooperation  of  the  interested  owners.  Under 
our  present  laws,  this  is  the  only  solution  of  the  remnant 
problem  which  is  possible  in  most  of  the  cities  of  this 
country ;  and  in  theory  this  plan  has  much  to  commend 
it.  In  theory,  by  private  sale  or  purchase  the  boundary 
lines  of  the  individual  abutting  properties  are  readjusted 
so  that  all  unsightly  and  useless  scraps  of  land  are  united 
to  the  adjoining  plots.  All  disputes  are  amicably  ad- 
justed and  there  is  no  need  for  coercion.  This  method 
is  in  reality  a  settling  of  a  somewhat  ominous  contro- 
versy "  out  of  court,"  as  it  were. 

It  would  be  going  too  far  to  say  that  the  replotting  of 
remnants  of  land  by  the  voluntary  cooperation  of  the 
owners  involved  is  impossible  of  actual  accomplishment. 
There  are  three  or  four  states  in  Germany  where  this  plan 
has  been  used  for  many  years  with  some  success.  This 
is  true  in  Prussia,  Saxony,  Bavaria  and  Hamburg.  In 
some  instances,  this  cooperation  seems  to  have  been  en- 
tirely voluntary.  In  Bavaria,  however,  the  building  po- 
lice, who  seem  there  to  enjoy  wide  discretionary  power, 
have  often  exerted  a  strong  pressure  toward  inducing 
land  owners  to  cooperate  in  replotting  by  their  refusal  to 
issue  permits  for  the  erection  of  buildings  upon  odd- 
shaped  lots.  In  Hamburg  the  city  itself  has  acquired  by 
purchase  a  large  amount  of  land  in  the  city.  If  an  area 
needs  replotting  or  redistributing  and  the  owners  decline 
to  cooperate  to  that  end,  the  refusal  of  the  city  to  develop 


PROBLEM  OF  REMNANTS  OF  LAND       35 


the  nearby  land  which  it  owns  has  in  some  cases  resulted 
in  bringing  the  recalcitrant  owners  to  time  and  inducing 
them  either  to  redistribute  their  property  or  to  sell  it. 
The  general  history  of  German  city-planning  legislation, 
however,  would  seem  to  indicate  that  a  successful  solu- 
tion of  the  problem  of  replotting  remnants  of  land 
through  the  voluntary  action  of  the  owners  is  the  excep- 
tion rather  than  the  rule.* 

This  method  of  dealing  with  land  remnants  in  the  very 
nature  of  the  case  can  never  be  depended  upon  as  a 
practical  and  efficient  solution  of  the  problem.  There  are 
three  reasons  why  this  is  true.  The  first  of  these  reasons 
is  that  in  order  to  make  such  a  scheme  successful  it  is 
vitally  necessary  that  there  be  cooperation  amongst  all 
the  owners,  and  such  cooperation  is  usually  well-nigh  im- 
possible to  get.  An  amicable  agreement  must  be  reached 
amongst  a  group  of  people  of  all  kinds,  actuated  by  a 
wide  variety  of  motives,  interests  and  desires.  Each  one 
is  anxious  to  protect  his  own  interests  and  to  secure  for 
himself  as  large  a  share  as  possible  of  the  benefit  to  be 
derived  from  the  improvement.  Some  of  the  owners  are 
willing  neither  to  buy  nor  to  sell ;  others  will  buy  but  will 
not  sell;  while  still  others  will  sell  but  will  not  buy. 
Even  when  the  problem  of  getting  buyers  and  sellers 
together  has  been  solved  there  still  remains  the  vexed 
question  of  price.  The  man  who  owns  an  undesirable 
remnant  feels  that  sooner  or  later  his  neighbor  will  be 
willing  to  meet  his  price  in  order  to  get  rid  of  him ;  while 
his  neighbor  is  disposed  to  hold  out  until  the  remnant 
owner,  discouraged  by  waiting,  will  sell  at  a  low  figure. 
There  is  plenty  of  room  for  hard  feeling,  long  delay  and 
final  disagreement.     Often  there  are  other  practical  diffi- 

*  Kissan,  B.  W.,  Report  on  Town  Planning  Enactments  in  Ger- 
miny.  Pars.  7  (i),  85,  93,  107,  112. 


36  EXCESS  CONDEMNATION 

culties  which  stand  in  the  way  of  securing  the  needed 
cooperation  from  some  of  the  interested  property  owners. 
A  serious  problem  is  presented  when  these  owners  are 
minors,  mortgagees  or  absent  owners.  It  sometimes 
occurs  that  it  is  well-nigh  impossible  to  discover  who  the 
owner  of  a  piece  of  property  is,  and  when  that  fact  is 
discovered  there  remains  the  task  of  making  him  see 
the  advisability  of  selling  a  piece  of  property  which  he 
may  never  have  seen.  It  is  quite  apparent  that  the  co- 
operation necessary  to  make  possible  this  voluntary  re- 
plotting  of  remnants  is  not  an  easy  thing  to  secure. 

The  second  practical  difficulty  with  this  plan  is  that 
the  owner  of  certain  lands  which  must  be  sold  in  order 
to  secure  a  wise  readjustment  of  boundary  lines  may 
be  legally  incapacitated  to  sell.  It  is  possible  that  all 
the  interested  parties  might  be  willing  and  anxious  to 
make  the  necessary  purchases  and  sales,  but  if  the  owner 
of  a  certain  estate  which  must  change  hands  is  unable  to 
pass  title  to  his  land  the  whole  project  of  replotting  may 
be  thwarted.^  Or  the  owner  may  be  bankrupt  and  the 
law  may  prevent  the  passing  of  valid  title  to  the  land. 
Thus  a  man  may  not  be  able  to  cooperate  with  his  neigh- 
bors even  if  he  wishes  to.  The  fact  that  this  occurs  per- 
haps very  infrequently  does  not  make  it  less  devastating 
when  it  does  occur. 

A  third  practical  objection  to  this  plan  rests  in  the 
delay,  cost  and  many  technicalities  which  are  inevitable 
when  so  many  individual  parcels  of  private  property 
change  hands.  This,  however,  is  a  matter  relatively  un- 
important and  would  not  of  course  be  a  very  vital  defect 

^  It  is  unnecessary  to  discuss  at  length  the  many  ways  in  which  a 
man  may  be  prevented  from  passing  title  to  his  property.  He  may 
have  only  a  life  estate  in  it,  it  may  be  held  in  trust,  or  it  may  be 
tied  up  by  the  terms  of  an  executory  devise  which  would  prevent 
the  passing  of  title  save  upon  certain  specified  contingencies. 


PROBLEM  OF  REMNANTS  OF  LAND       37 

in  the  plan  if  it  were  in  other  ways  an  effective  and 
satisfactory  scheme.  It  is  quite  apparent,  however,  that 
to  depend  upon  the  voluntary  cooperation  of  landowners 
to  effect  a  satisfactory  replotting  of  remnants  of  land  is 
to  leave  the  problem  without  adequate  solution,  for  only 
in  the  rarest  and  most  uncertain  instances  can  such  a 
method  be  depended  upon  to  produce  results. 

There  is  a  second  plan  which  has  been  suggested  as  a 
solution  of  the  problem  of  land  remnants,  which  is  not 
widely  different  from  the  one  just  considered.  This  is 
a  plan  to  bring  about  a  replotting  of  the  land  through 
voluntary  action  on  the  part  of  the  owners,  coupled  with 
suggestion  and  assistance  on  the  part  of  the  government. 
It  has  already  been  suggested  that  in  certain  of  the  Ger- 
man states  the  city  exerts  an  influence  in  the  direction  of 
bringing  about  a  private  redistribution  of  land  remnants 
by  declining  to  allow  the  erection  of  buildings  on  odd- 
shaped  lots,  and  by  adopting  a  policy  in  regard  to  the 
development  of  its  own  land  which  will  work  toward 
that  end.  This  latter  is  a  somewhat  indirect  influence, 
however,  which  is  exercised  rather  informally.  In  Eng- 
land, the  efforts  which  the  government  makes  to  in- 
duce private  owners  to  cooperate  in  a  replotting  scheme 
are  more  vigorous  and  direct  than  those  of  the  German 
states,  although  in  the  last  analysis  they  may  be  no  more 
effective.  The  action  taken  by  the  English  authorities 
for  this  purpose  is  authorized  by  a  section  of  the  famous 
Town  Planning  Act  of  1909,  which  provides  that  the 
local  government  board  shall  make  provision,  among 
other  things,  "  for  securing  the  cooperation  on  the  part 
of  the  local  authority  with  the  owners  and  other  persons 
interested  in  the  land  proposed  to  be  included  in  the 
scheme,  at  every  stage  of  the  proceedings,  by  means  of 
conferences  and  such  other  means  as  may  be  provided 


38  EXCESS  CONDEMNATION 

by  regulations."  ^°  In  other  words,  the  municipal  authori- 
ties take  the  initiative  in  calling  a  meeting  of  interested 
owners,  suggest  the  mutual  advantages  accruing  from  a 
friendly  readjustment  of  boundary  lines,  and  see  fair 
play  while  the  various  controversies  incident  to  that  read- 
justment are  being  settled.  The  city  does  not  compel 
any  man  to  buy  or  sell.  It  merely  suggests.  It  points 
out  why  replotting  would  be  wise,  how  it  would  benefit 
the  public  and  coincide  with  the  best  interests  of  many 
private  owners.  It  creates  an  opportunity  for  amicable 
discussion. 

Reason  and  experience  both  support  the  view  that 
much  more  can  be  accomplished  in  this  way  than  is  pos- 
sible without  such  help  from  the  public  authorities.  The 
action  which  the  city  takes  goes  far  to  allay  the  suspicion 
with  which  the  neighboring  landowners  are  prone  to 
regard  each  other.  The  conferences  are  not  called  or 
presided  over  by  any  one  who  has  an  ax  to  grind.  The 
broader  interests  of  the  city  at  large  are  represented  and 
the  property  owners  come  to  feel  that  they  are  rendering 
a  public  spirited  service  to  the  community  as  well  as 
protecting  their  individual  interests.  The  conditions  are 
made  ripe  for  as  generous  a  measure  of  compromise  and 
friendly  agreement  as  in  the  nature  of  the  case  could  be 
possible,  and  redistributions  are  made  which  could  never 
be  effected  if  left  solely  to  private  initiative  and  individ- 
ual dickering.  Mr.  J.  S.  Nettleford,  the  eminent  English 
town-planning  authority,  regards  this  provision  of  the 
Town  Planning  Act  of  1909,  for  securing  redistribution 
of  boundaries  through  the  cooperation  of  the  owners,  as 
one  of  the  most  valuable  parts  of  the  entire  law.  He 
describes,  in  considerable  detail,  several  projects  in  con- 
nection with  which  elaborate  readjustments  of  bound- 

i°Town  Planning  Act  of  1909,  Sec.  56,  No.  2(a). 


PROBLEM  OF  REMNANTS  OF  LAND       39 

aries  were  made  by  the  mutual  friendly  agreement  of 
the  interested  owners  at  the  suggestion  and  under  the 
guidance  of  the  municipal  authorities.^^ 

As  a  method  of  dealing  with  remnants  of  land  this  plan 
of  securing  private  cooperation  through  government  as- 
sistance is  good  as  far  as  it  goes.  It  does  not,  however, 
afford  a  thoroughgoing  and  adequate  solution  of  the  prob- 
lem. Its  limitations  are  obvious  and  are  inherent  in 
the  scheme  itself.  If  friendly  cooperation  can  be  se- 
cured, well  and  good;  but  when  cooperation  is  for  any 
reason  impossible,  such  a  plan  is,  of  course,  perfectly 
useless.  To  depend  entirely  upon  voluntary  action  is  to 
be  quite  unprepared  for  crises  which  are  sooner  or  later 
bound  to  occur.  No  method  of  dealing  with  remnants 
of  land  can  be  really  effective  if  its  successful  operation 
can  be  blocked  by  the  stubbornness  or  whim  of  a  single 
property  owner. 

A  third  solution  applied  to  the  land  remnant  problem 
is  one  which  has  been  worked  out  by  some  of  the  more 
progressive  states  and  cities  of  Germany.  It  is  a  plan 
by  which  the  public  authority  steps  in  and  redistributes 
among  the  various  owners  the  unsightly  or  unusable  rem- 
nants of  land  which  need  replotting.  The  care  and  skill 
with  which  this  scheme  has  been  developed  in  Germany 
are  indicative  of  the  acuteness  of  the  need  in  that  country 
for  an  effective  policy  of  replotting.  The  problem  there 
is  very  old  and  has  its  origin  in  a  cause  somewhat  differ- 
ent from  the  conditions  which  obtain  in  the  United  States. 
The  parcels  of  land  which  need  replotting  are  not  ex- 
clusively, nor  even  primarily,  remnants  or  remainders. 
They  are  plots  which,  for  perhaps  hundreds  of  years, 
have  been  divided  up  into  curiously  shaped  strips  and 
segments,  suitable  perhaps  for  the  garden  of  the  German 

11  Nettleford,  J.  S.,  Practical  Town  Planning,  pp.  47-53. 
4 


40  EXCESS  CONDEMNATION 

peasant  but  not  adapted  to  any  urban  purpose.  It  was 
to  secure  a  satisfactory  replotting  of  these  strips  of  land 
that  the  German  authorities  devised  this  scheme  of  re- 
distribution, and  while  the  situation  it  was  designed  to 
meet  was  thus  somewhat  different  from  our  own  problem 
of  lot  remnants  it  is  nevertheless  sufficiently  analogous 
to  warrant  a  brief  consideration  of  that  method  of  replot- 
ting. 

The  best  known  example  of  this  plan  of  land  redis- 
tribution is  that  embodied  in  the  provisions  of  the  famous 
Lex  Adickes,  a  law  bearing  the  name  of  its  author,  the 
eminent  Oberbiirgermeister  of  Frankfurt  am  Main.  This 
act  was  passed  by  the  Prussian  Landtag  in  1902  after 
there  had  been  ten  years  of  agitation  for  it.^^  It  was 
amended  in  some  particulars  in  1907.  Baden  and  Saxony 
have  legislation  of  a  very  similar  nature ;  ^^  but  only  in 
Frankfurt,  for  which  the  Lex  Adickes  was  first  passed 
though  it  has  later  been  extended  in  Prussia,  has  such 

12  Gesetz,  betreffend  die  Umlegung  von  Grundstiicken  in  Frank- 
furt a.  M.  July  28,  1902;  Gesetz-Sammlung  fiir  die  Koniglichen 
Preussischen  Staaten,  1902,  Nos.  10386-10387.  A  law  similar  to  the 
Lex  Adickes  but  one  applying  primarily  to  the  redistribution  of 
remnants  in  agricultural  districts  was  passed  as  early  as  1872. 
By  it  the  General  Commissions  of  Prussia,  which  have  charge  of 
agricultural  affairs,  may  redistribute  unsuitable  plots  on  consent 
of  the  owners  of  approximately  half  the  area,  and  up  to  1895  three- 
fifths  of  the  total  area  of  Prussia  had  been  so  treated.  But  the 
fact  that  the  act  exempts  from  redistribution  cultivated  or  built-on 
lands  unless  the  consent  of  all  the  owners  is  given,  makes  the  act 
practically  inapplicable  to  the  problem  of  urban  replotting.  While 
the  General  Commissions  have  occasionally  undertaken  the  re- 
distribution of  urban  land,  their  legal  right  to  do  so  is  a  matter 
of  doubt.     Kissan,  op.  cit..  Pars.  17,  19,  31,  33. 

13  Law  of  Baden,  July  6,  1896;  Law  of  Saxony,  July  i,  igoo.  For 
discussion  of  these  laws,  see  Kissan,  op.  cit..  Pars.  65-108;  also 
Appendix  E.  I.,  Report  of  the  London  Traffic  Branch  of  the  Board 
of  Trade,  House  of  Commons  Sessional  Papers,  1908,  Vol.  93,  p. 
i65flf,  discussion  by  W.  H.  Dawson. 


PROBLEM  OF  REMNANTS  OF  LAND       41 

legislation  been  put  to  any  adequate  test.  There  are 
some  variations  in  the  provisions  of  these  compulsory 
replotting  laws,  but  they  all  follow  in  their  main  pro- 
visions the  general  lines  of  the  Lex  Adickes,  which 
will,  accordingly,  be  taken  as  the  basis  of  this  discussion. 
According  to  this  act,  a  scheme  for  redistribution  may 
be  proposed,  either  by  the  municipality  or  by  over  half 
the  property  owners  to  be  affected  provided  these  owners 
own  over  half  the  property  which  will  be  involved  in  the 
scheme.  After  the  detailed  plan  for  redistribution  is 
drawn  up  and  those  interested  in  it  have  had  an  oppor- 
tunity to  file  objections,  it  must  receive  the  sanction  of 
the  administrative  authorities  of  the  central  government 
before  work  is  begun.  Part  of  the  plan  of  replotting 
involves  the  laying  out  of  new  streets  and  there  is  no 
uniform  policy  of  payment  for  the  land  needed  for  them. 
In  some  cases  the  city  must  pay  for  all  the  land  thus 
taken  for  public  use.  The  Lex  Adickes  provides  that 
when  the  city  proposes  a  redistribution  the  city  need  not 
pay  for  land  taken  for  streets  unless  such  land  exceeds 
35  per  cent  of  the  total  area  being  replotted,  but  must 
pay  for  any  land  taken  in  excess  of  that  amount.  When 
the  proposal  for  redistribution  is  made  by  the  property 
owners,  this  proportion  is  increased  to  40  per  cent. 
After  the  streets  are  laid  out  the  rest  of  the  land  in  the 
area  is  pooled  and  replotted  so  as  to  make  suitable  build- 
ing sites.  A  man  loses  his  original  holding,  but  he  re- 
ceives in  return  a  plot  in  the  same  district  of  proportion- 
ate area  to  the  land  he  pooled,  and  as  near  as  possible  to 
his  original  holdings;  in  the  event  that  this  new  holding 
represents  a  lower  value  than  his  original  holdings  a  man 
is  entitled  to  damages,  which  are  borne  by  all  the  owners 
proportionately.  Under  the  Lex  Adickes,  when  an  in- 
dividual holding  is  so  small  in  area  that  the  newly  allotted 


42  EXCESS  CONDEMNATION 

plot  corresponding  to  it  would  be  unsuitable  for  building 
purposes,  and  a  merging  of  land  cannot  be  effected 
among  the  owners  concerned,  the  city  must  buy  the  plot 
and  can  sell  it  to  an  adjoining  owner  if  he  cares  to  pur- 
chase. In  19 1 3  it  was  proposed  to  make  it  obligatory 
upon  the  city  to  sell  to  an  adjoining  owner,  on  his  demand, 
such  remnants  as  it  could  not  merge  with  its  own  land. 
In  Frankfurt,  the  cost  of  the  entire  proceedings,  adminis- 
trative and  legal,  may  be  borne  by  the  city  in  case  it  pro- 
poses the  redistribution,  by  the  property  owners  if  they 
initiated  it;  there  are  other  states  in  which  these  costs 
are  shared  by  the  city  and  property  owners  according 
to  some  ratio  fixed  by  law.^* 

No  action  was  taken  by  the  city  of  Frankfurt  under 
the  Lex  Adickes  until  1909.  Since  that  time  two  redis- 
tribution projects  have  been  completed  and  four  others 
begun.  The  first  of  these  undertakings  involved  an  area 
of  thirty-two  acres  comprising  sixty-eight  separate  hold- 
ings. The  proposal  was  made  by  forty-one  owners  who 
held  three-fifths  of  the  entire  area  to  be  replotted.  The 
city  took  for  streets  land  amounting  to  35.4  per  cent  of 
the  area  of  the  district  involved.  The  legal  and  admin- 
istrative costs  of  the  proceeding  totaled  5,400  marks,  and 
this  the  city  paid  instead  of  charging  it  to  the  owners 
because  it  felt  that  it  was  wise  to  encourage,  as  much  as 
possible,  the  use  of  the  law.  In  fact,  the  only  cost 
borne  by  the  property  owners  was  the  sum  of  650  marks 
paid  in  damages  to  the  owner  of  certain  unusable  lands 
which, had  to  be  taken  by  the  city.  The  project  was  com- 
pleted in  191 1. 

"Kissan,  B.  W.,  op.  cit..  Par.  34.  The  Baden  and  Saxony 
laws  diflfer  from  the  Lex  Adickes  materially  in  this  respect,  that 
the  pooled  area  is  to  be  redistributed  according  to  value  and  not 
area.  But  these  provisions  have  never  been  tried  out,  and  much 
doubt  exists  as  to  the  equity  and  practicability  of  this  provision. 
Kissan,  op.  cit..  Pars.  72,  77,  84,  85. 


PROBLEM  OF  REMNANTS  OF  LAND      43 

The  second  case  of  replotting  in  Frankfurt  was  car- 
ried out  on  a  somewhat  larger  scale.  One  hundred  and 
forty  individual  holdings  with  a  total  area  of  fifty-one 
acres  were  included  in  the  scheme.  The  city  needed  for 
streets  and  public  places  only  31.08  per  cent  of  the  land 
involved.  Rather  heavy  damages  were  paid,  however, 
and  the  total  charges  borne  by  the  owners  amounted  to 
62,500  marks,  while  the  cost  to  the  city  of  carrying  out 
the  undertaking  was  7,000  marks.^'' 

This  German  legislation  involves  a  rather  unique  ap- 
proach to  the  problem  of  remnants  of  land.  In  a  sense, 
however,  it  differs  from  the  two  plans  which  have  been 
described  only  in  degree.  In  the  first  plan,  the  property 
owners  themselves  redistributed  their  land.  In  the  sec- 
ond plan,  the  government  suggested  and  encouraged  such 
voluntary  redistribution  and  assisted  in  its  accomplish- 
ment. Under  the  German  method,  the  government  itself 
does  the  replotting  and  hands  back  to  the  original  owners 
a  proportionate  share  of  the  land.  This  scheme  has 
some  striking  advantages  over  other  methods  of  redis- 
tributing land.  It  is  a  direct  and  effective  policy  which 
cannot  be  blocked  by  the  stubbornness  of  one  or  two  re- 
calcitrant owners.  The  rights  of  property  owners  in- 
volved are  duly  safeguarded.  Instead  of  dep^-iving  a 
man  permanently  of  his  property  and  his  location,  this 
plan  allows  him  to  retain  a  plot  proportionate  to  his  orig- 
inal holding  near  his  former  site.  If  this  plot  is  so  small 
as  to  be  useless,  he  is  afforded  an  opportunity  to  sell  to 
the  city  at  a  reasonable  price.  From  the  standpoint  of 
the  public,  this  method  is  fair  and  economical.  The  city 
is  not  obliged,  as  a  general  rule,  to  pay  for  any  land  so 
long  as  the  amount  needed  for  streets  and  public  places 
does  not  exceed  a  third  of  the  total  area.     Land  not  de- 

15  Kissan,  B.  W.,  op.  cit.,  Pars.  39-52. 


44  EXCESS  CONDEMNATION 

signed  for  definite  public  use  is  taken  by  the  city  only 
in  exceptional  cases  in  which  it  must  subsequently  be  dis- 
posed of  and  there  is  no  speculative  risk  involved.  And 
finally,  when  the  interested  owners  propose  a  redistribu- 
tion, the  city  is  not  obliged  to  pay  even  the  actual  cost 
of  proceedings. 

It  must  be  borne  in  mind,  however,  that  the  problem 
of  replotting  land  which  the  German  city  faces  is  not 
precisely  the  same  as  that  which  confronts  the  English 
or  American  municipality.  It  is  seldom  that  it  is  neces- 
sary or  advisable  in  this  country  to  readjust  all  the  bound- 
ary lines  in  a  particular  district.  The  Lex  Adickes  is 
admirably  designed  to  convert  numerous  peasant  garden 
patches  and  fields  into  city  building  lots  but  it  would  not 
meet  so  well  the  problem  of  the  remnants  of  land  which 
may  be  left  only  here  and  there  along  the  line  of  an 
improvement  in  a  thickly  settled  portion  of  a  city.  In 
fact  this  German  system  of  redistribution  works  satis- 
factorily only  on  land  not  yet  built  upon.^^  It  may  be 
a  relatively  simple  matter  to  shift  the  boundary  lines  of 
property  which  is  free  from  buildings,  but  to  redistribute 
land  covered  with  buildings  will  usually  necessitate  a 
wholesale  destruction  of  valuable  property.  When  it  is 
applied  to  a  built-up  section  in  a  city,  the  complications 
and  difficulties  which  arise  more  than  offset  its  advan- 
tages. This  scheme  further  contemplates  that  few  if 
any  of  the  plots  to  be  redistributed  shall  be  too  small  for 
adequate  building  purposes.  In  fact,  it  has  been  seen 
that  when  there  are  individual  holdings  which  are  too 
small  for  use  after  the  replotting  has  taken  place,  they 
are  disposed  of  by  a  process  more  or  less  incidental  to 
the  main  scheme.  .  Now,  not  the  least  important  aspect 

16  Indeed,  the  Lex  Adickes  provides  that  areas  built  on  or  used 
as  gardens,  etc.,  may  be  excluded  from  the  redistribution. 


PROBLEM  OF  REMNANTS  OF  LAND       45 

of  the  problem  of  remnants  of  lands,  as  it  arises  in  the 
modern  American  city,  is  that  of  dealing  with  plots  which 
are  too  small  to  use.  There  is  no  wisdom  in  redistribut- 
ing that  which  is  already  too  small.  To  attempt,  there- 
fore, to  utilize  the  complex  plan  of  the  Lex  Adickes  for 
the  purpose  of  disposing  of  such  fragments  of  land  as 
these  would  be  burning  down  the  barn  to  get  rid  of  the 
rats.  It  is  conceivable  that  such  a  plan  of  redistribution 
would  help  the  American  city  in  some  instances  to  make 
necessary  and  desirable  readjustments  of  property  lines, 
but  it  is  not  a  plan  which  will  adequately  and  efficiently 
eradicate  the  evil  due  to  remnants  of  land,  as  that  evil 
most  commonly  arises  in  our  municipalities.  The  fact 
that  newer  legislation  is  coming  forward  in  Prussia  to 
make  the  acquiring  and  merging  of  remnants  obligatory 
upon  the  city,  and  that  in  the  state  of  Wiirtemberg,  which 
has  most  up-to-date  legislation  on  this  subject,  the  newest 
principles  of  excess  condemnation  for  disposing  of  rem- 
nants are  in  force,  goes  far  to  prove  that  even  in  Germany 
this  method  of  dealing  with  land  remnants  is  hardly 
adequate. 

The  fourth  plan  for  dealing  with  remnants,  and  a  plan 
which  has  frequently  been  employed  by  the  cities  in  this 
country,  provides  that  if  the  owner  of  a  remnant  of  land 
wishes  to  sell  it  and  the  city  wishes  to  buy  it,  such  a  trans- 
fer may  be  effected.  This  involves  no  peculiar  exercise 
of  governmental  power."  The  owner  of  the  remnant 
cannot  be  obliged  to  sell  nor  can  he  compel  the  city  to 
buy.  It  is  merely  a  private  sale  which  takes  place  only 
at  the  desire  of  both  parties. 

17  The  city  would  doubtless  need  to  have  definite  authorization 
for  such  a  practice  from  the  legislature,  but  there  seems  no  ques- 
tion as  to  the  right  of  the  legislature  to  give  the  city  such  power 
if  it  cares  to  do  so. 


46  EXCESS  CONDEMNATION 

An  early  instance  of  a  law  thus  permitting  a  city  to 
purchase  remnants  of  land  was  a  New  York  statute  of 
1833  applying  to  the  village  of  Brooklyn.^^  This  law 
provided  that  "  when  a  residue  shall  be  left  of  any  lot 
or  lots  necessary  to  be  taken  for  such  improvement,  the 
said  commissioners  may,  in  cases  where  injury  or  in- 
justice would  otherwise  be  done,  and  with  the  consent  in 
writing  of  the  owner  or  owners  of  such  lot  or  lots, 
include  the  whole  or  any  part  of  such  residue  in  their 
report  .  .  .  and  estimate  separately  the  value  thereof." 
The  city  could  then  buy  these  remnants  and  later  resell 
them.  It  must  offer  them  first  to  owners  of  the  adjacent 
property  and  if  a  sale  could  not  be  effected  with  them, 
the  remnants  must  be  sold  at  public  auction.  There 
seems  to  be  no  record  of  this  law's  having  been  used.^" 

In  1866,  the  legislature  of  Massachusetts  passed  an  act 
allowing  the  city  of  Boston  thus  to  purchase,  if  it  deemed 
it  wise  to  do  so,  remnants  of  land  caused  by  the  "  laying 
out,  altering,  widening  and  improving  the  streets  of 
Boston."  20 

18  Laws  of  New  York,  1833,  Ch.  319. 

18  It  may  be  that  "  may "  in  this  statute  would  be  construed 
"  must "  by  the  courts,  thus  making  it  obligatory  upon  the  city  to 
buy  these  remnants  if  the  owner  wished  to  dispose  of  them.  No 
litigation  seems  to  have  arisen  under  the  act  and  it  is  included  here 
among  the  statutes  providing  for  voluntary  purchase  by  the  city. 

20  Acts  of  1866,  Ch.  174.  The  relevant  part  of  this  act  is  con- 
tained in  section  8.  "  Any  person  owning  any  estate  abutting  on 
any  street  whicb  may  be  laid  out,  widened,  discontinued,  graded  or 
altered,  and  liable  to  assessment  under  this  act,  may,  at  any  time 
before  the  estimate  of  damages  is  made  under  the  second  section 
of  this  act,  give  notice  in  writing  to  the  said  board  of  aldermen  that 
he  objects  to  such  assessment  and  elects  to  surrender  his  said  estate 
to  the  city  of  Boston,  and  if  said  board  of  aldermen  shall  then 
adjudge  that  public  convenience  and  necessity  require  the  taking  of 
such  estate,  that  such  improvements  may  be  made,  they  shall  have 
full  authority  and  may  take  the  whole  of  the  abutting  estate  of  such 
person  so  objecting,  and  shall  thereupon  estimate  the  value  thereof 


PROBLEM  OF  REMNANTS  OF  LAND       47 

Just  how  extensively  and  with  what  results  the  powers 
conferred  by  these  early  acts  were  utilized,  it  is  diffi- 
cult at  this  date  to  determine.  In  1904,  however,  the 
legislature  of  Maryland  passed  an  elaborate  statute  creat- 
ing a  "  Commission  on  the  Burnt  District  of  Baltimore 
City,"  for  the  purpose  of  dealing  with  the  problems  of 
rehabilitation  arising  after  the  great  fire.^^  The  ninth 
section  of  this  act  provided  that 

in  every  case  when  it  shall  be  necessary,  in  order  to  effect  the 
objects  proposed,  .  .  .  that  a  portion  only  of  a  lot,  or  a  lot 
and  improvements,  shall  be  taken,  used  or  destroyed,  and 
the  owner  or  owners  thereof  shall  claim  to  be  compensated 
for  the  whole,  the  said  commissioners  may,  in  such  cases,  if 
they  deem  it  necessary  and  not  otherwise,  accept  a  surrender 
in  writing  of  the  whole  of  said  lot,  or  the  whole  of  said  lot 
and  improvements,  ... 

Detailed  provisions  follow  for  the  passing  of  title  to  the 
city  and  the  subsequent  resale  of  the  property  by  the  city. 
This  power  was  exercised  by  the  commission  to  a  limited 
degree  and  quite  a  number  of  remnants  were  thus  ac- 
quired. Some  of  these  were  held  and  used  by  the  city 
for  public  purposes  while  others  were  disposed  of  at  auc- 
tion. There  was  no  serious  objection  to  the  carrying 
out  of  this  plan,  and  the  results  were  on  the  whole  satis- 
factory.22 

with  all  the  improvements  thereon,  excluding  the  benefit  or  ad- 
vantage which  has  accrued  from  the  said  laying  out,  widening,  etc., 
and  the  said  owner  shall  convey  the  same  to  the  said  city,  and  the 
said  city  shall  pay  him  therefor  the  value  so  estimated.  Said  city 
shall  sell  all  the  building  materials  and  buildings,  and  the  remain- 
ing portion  of  said  estate  not  used  in  said  widening,  grading  and 
improvements,  and  apply  the  net  proceeds  thereof  towards  the  esti- 
mated value  paid  as  aforesaid." 

21  Acts  of  Maryland,  1904,  Ch.  87. 

22  a.  For  this  information  the  writer  is  indebted  to  Mr.  Joseph 


48  EXCESS  CONDEMNATION 

The  advantages  of  this  method  of  deaUng  with  rem- 
nants of  land  are  apparent.  It  may  benefit  both  the 
property  owner  and  the  city.  The  owner  is  not  obliged 
to  part  with  his  property  against  his  will,  but  is  still  af- 
forded in  many  cases  an  opportunity  to  sell  at  a  reason- 
able figure  if  he  cares  to  do  so.  He  can  thus  dispose  of 
property  upon  which  he  would  be  obliged  to  pay  assess- 
ments and  taxes  and  out  of  which  he  could  get  little  or 
no  use  or  value.  The  city,  on  the  other  hand,  is  not 
compelled  to  buy,  and  can  thus  protect  itself  against  the 
unprofitable  acquisition  of  land.  At  the  same  time,  as 
has  already  been  indicated,  it  may  in  many  cases  be  much 
cheaper,  all  things  considered,  for  the  city  to  acquire 
the  remnants  of  land  remaining  than  to  leave  them  in 
private  hands.^^  There  would  quite  likely  be  sufficient 
financial  advantage  to  the  city  in  most  cases,  from  the 
acquisition  of  these  remnants,  to  enable  any  owner  to  sell 
who  wished  to  do  so.  But  the  financial  gain  to  the  city 
is  not  the  only  one  to  be  considered.  If  the  city  cannot 
readily  and  profitably  dispose  of  these  remnants,  it  is  at 
least  in  a  position  to  see  that  they  are  put  to  the  least 
offensive  uses  possible.  It  can  protect  its  own  property 
from  wanton  and  unnecessary  disfigurement,  and  this 
power  is  in  itself  no  small  gain.  In  some  instances  the 
city  may  be  able  to  use  these  plots  for  municipal  pur- 

W.  Shirley,  Chief  Engineer  of  the  Topographical  Survey  Commis- 
sion of  the  city  of  Baltimore. 

b.  A  similar  plan,  for  English  cities,  is  advocated  by  J.  S.  Nettle- 
ford.  His  proposal  is  that  "  For  the  purpose  of  the  adjustment  or 
alteration  of  the  boundaries  of  any  such  estate  or  lands  as  aforesaid 
the  locality  may  themselves  purchase,  subject  to  the  provisions  of 
the  act  of  1909,  any  land,  and  may  sell  or  lease  the  same  in  whole 
or  in  part  at  such  time  or  times,  at  such  price  or  prices,  and  on  such 
conditions  as  they  may  think  fit."  practical  Town  Planning,  pp. 
325-326. 

83  Supra,  p.  29ff. 


PROBLEM  OF  REMNANTS  OF  LAND       49 

poses  not  inappropriate  to  their  environment.  In  many 
cases,  however,  the  city  would  be  able  to  sell  such  frag- 
ments to  the  adjoining  owners  and  thus  accomplish,  some- 
what indirectly,  it  is  true,  an  adequate  replotting  which 
would  do  away  with  the  remnants  entirely  and  promote 
the  best  and  quickest  development  of  the  surrounding 
neighborhood. 

Like  the  plans  which  have  already  been  discussed,  this 
scheme  of  permitting  the  city  to  buy  remnants  of  land 
if  the  owners  wish  to  sell  them  is  good  as  far  as  it  goes. 
Its  weakness  lies  in  the  fact  that  it  does  not  go  far 
enough.  Like  any  other  contract  of  sale,  it  depends 
upon  the  consent  of  both  parties.  If  the  owner  wishes 
to  sell  but  cannot  induce  the  city  to  buy  or  if  the  city 
wishes  to  buy  but  cannot  persuade  the  owner  to  sell, 
an  insurmountable  obstacle  to  the  transaction  is  at  once 
raised.  This  plan  can  never  be,  therefore,  an  adequate 
and  reliable  method  of  dealing  with  the  problem  of  rem- 
nants of  land.  In  fact  the  plan  does  not  seem  to  have 
been  designed  for  a  thoroughgoing  solution  of  that 
problem.  Its  primary  purpose  seems  to  have  been 
to  protect  the  interests  of  the  remnant  owner  by  al- 
lowing him  to  dispose  of  an  unusable  fragment  if  he 
wishes  to  do  so  and  can  induce  the  city  to  take  it.  But 
it  affords  no  relief  to  the  public  or  the  owner's  neighbors 
should  he  refuse  to  improve  or  sell  his  land.  On  the 
other  hand,  while  the  city  may  purchase  the  unusable 
fragment,  it  may  still  be  unable  to  secure  any  satisfac- 
tory replotting  if  the  owners  of  the  adjacent  property 
refuse  to  purchase  the  remnant.  In  that  case,  the  net 
result  would  be  to  transfer  a  white  elephant  from  its 
former  owner  to  the  city.  The  plan  as  a  whole  seems 
inadequate  in  scope  and  uncertain  in  operation. 

A  fifth  method  of  dealing  with  this  problem  is  merely 


50  EXCESS  CONDEMNATION 

a  modification  of  the  one  just  discussed.  This  is  the 
plan  of  compeUing  the  city  to  buy  a  remnant  of  land  if 
the  owner  wishes  to  sell  it.  This  plan  rests  upon  the 
principle  that  since  the  city  has  mutilated  a  man's  prop- 
erty and  left  him  something  which  he  cannot  use  and 
may  not  be  able  to  sell,  it  is  really  obligated  to  take  the 
unprofitable  remainder  off  his  hands  if  he  so  desires. 
There  have  been  several  American  statutes  passed  at 
various  times  authorizing  such  a  scheme.  In  1810,  the 
city  of  Charleston  found  that  the  creation  of  street  im- 
provements in  that  city  was  working  serious  hardship 
upon  many  property  owners  by  leaving  upon  their  hands 
utterly  useless  remnants  of  land.  Accordingly,  a  law 
was  passed  requiring  the  city  to  buy  these  remnants  on 
the  demand  of  the  owner.^*  In  1832,  a  statute  of  Louis- 
iana provided  that  when  part  of  a  man's  lot  was  taken 
for  the  purpose  of  a  street  opening  in  New  Orleans,  the 
owner  could  abandon  it  and  compel  the  city  to  buy  the 
whole  of  it.^^  A  similar  statement,  though  somewhat 
more  detailed,  is  found  in  a  Baltimore  ordinance  of  1858, 
passed  by  authority  of  an  act  of  the  Maryland  legisla- 
ture of   1838.^"     Section  7  of  this  ordinance  provided, 

that  in  every  case  where  it  shall  be  necessary  to  efifect  the 
object  proposed,  that  a  part  only  of  a  house  and  lot,  or  of  a 
lot,  shall  be  taken  and  used,  or  destroyed,  and  the  owner 
thereof  shall  claim  to  be  compensated  for  the  whole,  the 
commissioners  shall  ascertain  the  full  value  thereof  as  if  the 
whole  lot  and  improvements  were  necessary  to  be  taken  and 
used  for  such  proposed  object. 

2*  Referred  to  in  Dunn  vs.  City  Council  of  Charleston,  Harper's 
Law  Report  (S.  C)  189  (1824). 

25  Act  of  1832,  referred  to  in  Pierre  Boulat  z*s.  Municipality 
Number  One,  5  La.  Ann.,  363  (1850). 

28  Laws  1838,  Ch.  226.  Upheld  in  Mayor  and  Common  Council 
of  Baltimore  vs.  Clunet,  Merryman,  et  at.,  23  Md.,  449  (1865). 


PROBLEM  OF  REMNANTS  OF  LAND       51 

Practically  the  same  provision  appears  in  a  Massachu- 
setts statute  of  1865.^^  The  famous  Massachusetts  Rem- 
nants Act  of  1904  contains  a  clause  providing  that  if  the 
owner  of  a  remnant  elects  to  sell  the  same  to  the  city, 
the  city  must  purchase  it  at  a  price  fixed  by  an 
appraiser.^* 

Similar  provisions  occur  in  the  laws  of  foreign  coun- 
tries. The  Land  Clauses  Consolidation  Act  of  1845, 
which  has  determined  the  general  policy  of  taking  private 
property  for  public  improvements  in  England  ever  since 
that  date,  contains  the  clause:  "No  party  shall  at  any 
time  be  required  to  sell  or  convey  to  the  promoters  of  the 
undertaking  a  part  only  of  any  house  or  other  building 
or  manufactory  if  such  party  be  willing  and  able  to  sell 
and  convey  the  whole  thereof."  ^^  It  has  already  been 
seen  that  the  Lex  Adickes  in  Frankfurt  am  Main  re- 
quires the  city,  when  private  adjustment  is  impossible, 
to  purchase  such  plots  of  land  as  are  too  small  to  be 
replotted.  The  present  charter  of  the  city  of  Montreal 
contains  a  clause  embodying  the  same  plan.^° 

The  only  new  advantage  afforded  by  the  plan  of  com- 
pelling the  city  to  buy  remnants  when  the  owners  wish 
to  sell  them  to  the  city  is  an  advantage  accruing  to  the 
owner  himself.  Laws  of  this  character  are,  of  course, 
framed  in  his  behalf  and  at  his  behest.  If  he  does  not 
care  to  sell  his  remnant  of  land  he  is  not  obliged  to  do  so, 
but  if  he  does  wish  to  dispose  of  it,  and  cannot  negotiate 
a  satisfactory  private  sale,  the  city  is  obliged  by  law 

27  Acts  of  1865,  Ch.  159,  Sec.  10.  "  An  act  to  authorize  the  laying 
out  and  widening  of  a  street  from  Milk  Street  to  Broad  Street  in 
the  city  of  Boston." 

28  Laws  of  1904,  Ch.  443.  See  infra,  p.  6sff  for  the  application  of 
this  clause  in  Springfield,  Mass. 

20  8  and  9  Vict.,  Ch.  18,  Sec.  92,  8  May,  1845. 

80  Charter  of  City  of  Montreal,  1899.    Rev.  1913,  Sec.  427. 


52  EXCESS  CONDEMNATION 

to  buy  him  out.  Of  course,  the  city  secures  the  same  in- 
cidental advantage  here  as  under  the  last  mentioned  plan, 
namely  the  opportunity  to  see  that  the  remnants  of  lands 
which  it  thus  acquires  are  put  to  the  least  objectionable 
uses  possible.  In  the  main,  however,  the  provisions  of 
this  scheme  benefit  and  protect  the  landowner  and  not 
the  public. 

In  fact,  it  is  urged  as  a  serious  objection  to  this  policy 
that  it  does  not  adequately  safeguard  the  interests  of  the 
public.  It  is  perfectly  apparent  that  it  affords  no  thor- 
oughgoing solution  of  the  problem  of  remnants  of  land. 
There  is  no  way  of  compelling  a  stubborn  owner  to  sell 
one  of  these  unsightly  fragments  if  he  does  not  wish  to 
do  so,  and  consequently  there  is  no  assurance  that  an 
effective  policy  of  replotting  can  be  carried  out  by  the 
city.  It  is  argued  furthermore  that  this  plan  does  not 
allow  the  city  to  protect  itself  adequately  from  the 
making  of  bad  bargains.  Unless  the  city  has  power  to 
work  out  an  effective  scheme  of  replotting  any  remnants 
forced  upon  it,  the  purchase  may  prove  a  bad  bargain. 
It  may  be  obliged  to  buy  a  mutilated  plot  for  which,  in 
its  present  condition,  it  has  no  use,  while  it  has  no  author- 
ity to  condemn  other  remnants  which  are  needed  to  effect 
a  satisfactory  redistribution.  There  is  much  justice  in 
the  claim  that  the  city  ought  to  be  obliged  to  relieve  a 
private  owner  of  a  worthless  fragment  of  land  for  which 
it  is  responsible.  But  the  public  interests  cannot  be  prop- 
erly protected  unless  the  public  authorities  are  given  at 
the  same  time  the  broader  powers  necessary  to  merge 
the  remnant  with  the  adjacent  plots.^^ 

31  So  serious  was  the  burden  placed  upon  the  public  by  the  pro- 
vision of  the  Land  Clauses  Consolidation  Act  of  1845  above  re- 
ferred to  (page  51)  that  some  of  the  recent  public  improvement 
acts  in  England  have  contained  clauses  relieving  the  public  of  the 
necessity  of  buying  remainders  of  buildings  unless  the  authorities 


PROBLEM  OF  REMNANTS  OF  LAND       53 

From  the  examination  of  the  methods  thus  far  con- 
sidered, it  would  seem  that  no  scheme  for  dealing  with 
remnants  of  land  can  be  adequate  and  successful  which 
does  not  involve  a  high  degree  of  public  control.  The 
working  out  of  a  thoroughgoing  plan  of  replotting  and 
readjustment  cannot  safely  be  made  contingent  upon  the 
consent  of  the  individual  property  owner.  So  long  as 
the  city  is  prevented  from  taking  property  which  is 
needed  for  such  a  redistribution,  or  is  obliged  at  the 
same  time  to  take  against  the  better  judgment  of  its 
officers  property  which  is  not  needed,  the  real  problem  of 
land  remnants  will  remain  untouched.  Private  interests 
may  be  adequately  protected;  the  interests  of  the  public 
will  be  neglected  or  jeopardized. 

It  is  for  these  reasons  that  even  those  who  bitterly 
oppose  the  application  of  that  policy  for  other  purposes 
are  coming  to  look  with  more  and  more  favor  upon 
excess  condemnation  as  the  most  adequate  solution  for 
this  complex  problem  of  remnants  of  land.  The  scheme 
seems  admirably  fitted  for  this  purpose.  It  merely  pro- 
vides that  the  city  may  condemn  a  remnant  of  land  when- 
ever it  deems  it  wise  to  do  so.  The  city  can  thus  acquire 
the  unusable  and  unsightly  remnants  which  line  the  way 
of  a  new  improvement  and  either  use  them  for  public 
purposes  or  sell  them  to  the  adjoining  owners.  It  does 
away  with  the  ridiculous  situation  in  which  the  city,  hav- 
ing condemned  all  but  a  few  square  feet  of  a  man's 
estate,  is  unable  to  take  the  rest  and  prevent  its  being 
put  to  offensive  uses.  If  the  power  of  condemning  rem- 
nants of  land  is  developed  far  enough  to  allow  the  city 
to  force  an  adequate  replotting  of  those  remnants,  even 
against  the  wishes  of  the  adjacent  owners,  the  public 

deem   it   wise.    London   County   Council    (Tramways   and    Im- 
provements) Act  (1901)  I  Edw.  7,  Ch.  cclxxi,  Sec.  46. 


54  EXCESS  CONDEMNATION 

authorities  might  safely  be  compelled  to  purchase  any 
remnant,  the  owner  of  which  desired  to  sell,  without 
danger  of  its  being  left  with  land  on  its  hands  which  it  is 
unable  to  render  usable. 

The  condemnation  of  remnants  is  a  policy  the  law  and 
practice  of  which  it  is  possible  to  study  in  some  detail, 
for  it  has  been  tried  out  in  various  forms  by  both  Euro- 
pean and  American  cities. 

In  the  year  1852,  a  law  was  enacted  in  France  giving 
cities  the  right  to  take  the  whole  of  an  estate  when  rem- 
nants which  were  unfitted  for  building  purposes  were  left 
along  the  lines  of  a  new  or  improved  street.^^  The  Coun- 
cil of  State  was  authorized  to  govern,  with  considerable 
strictness,  the  exercise  of  this  power.  The  most  notable 
examples  of  the  operation  of  this  law  are  to  be  found  in 
the  city  of  Paris,  and  the  early  efforts  to  utilize  it  are 
described  by  a  special  commission  sent  abroad  a  number 
of  years  ago  by  the  legislature  of  Massachusetts  for  the 
purpose  of  studying  the  problem  of  excess  condemna- 
tion.^^ At  first  the  city  of  Paris  was  inclined  to  use  this 
power  of  condemning  remnants  of  land,  not  only  for  the 
purpose  of  securing  adequate  building  sites,  but  also  for 
the  purpose  of  recoupment.  A  decree  passed  in  1864 
provided  for  the  construction  of  a  portion  of  the  rue 
Reaumur  connecting  the  place  de  la  Bourse  with  the 
boulevard  Sebastapol.  The  actual  construction  did  not 
begin  for  thirty  years,  but  was  finally  carried  through 
according  to  the  original  plan.  In  connection  with  this 
improvement  very  large  remnants  of  land,  some  of  them 
five  thousand  square  feet  in  area,  were  condemned  by  the 

S2  Decree  of  March  26,  1852;  Duvergier,  Collection  des  Lois, 
Vol.  LII,  p.  282. 

33  Supplemental  Report,  Massachusetts  House  Document  1096 
(1904)  pp.  3-10. 


PROBLEM  OF  REMNANTS  OF  LAND       55 

city,  far  in  excess  of  the  strict  letter  of  its  authority.  In 
the  words  of  the  Massachusetts  commission,  "These  rem- 
nants were  resold  for  building  lots,  and  in  some  cases  the 
remnant,  which  had  been  taken  as  being  too  small  to  allow 
the  erection  of  a  wholesome  building  thereon,  was  divided 
into  two  lots,  each  of  which  was  sold  by  itself  for  a  build- 
ing lot."  These  large  plots  were  taken  in  order  to  enable 
the  city  to  recover,  through  their  resale,  part  of  the  cost 
of  making  the  improvement.  They  were  auctioned  off  by 
the  city  and  the  prices  received  for  them  were  very 
satisfactory. 

This  policy  was,  however,  open  to  criticism  on  two 
scores.  In  the  first  place,  it  involved  a  very  heavy  initial 
cost  for  constructing  the  street.  The  fact  that  in  this 
particular  case  the  surplus  land  was  sold  at  a  profit  did 
not  alter  the  fact  that,  in  buying  so  much  land,  the  city 
assumed  a  highly  speculative  risk  which  might  well  have 
resulted  in  financial  loss.  In  the  second  place,  such  a 
policy  is  hardly  fair  to  the  landowners  whose  property  is 
taken.  To  recoup  the  cost  of  an  expensive  improvement 
by  condemning  and  reselling  the  abutting  land  is  one 
thing,  to  recoup  that  cost  by  condemning  only  here  and 
there  an  abutting  lot  is  quite  another.  The  owners  of 
those  remnants  which  were  large  enough  to  permit  satis- 
factory private  use  and  development  might  justly  com- 
plain that  there  were  no  arguments  to  justify  the  appro- 
priation of  their  property  which  would  not  apply  with 
equal  force  to  the  taking  of  the  property  left  in  the  un- 
disturbed possession  of  their  neighbors.  The  Council  of 
State  has,  therefore,  rigidly  limited  the  application  of 
excess  condemnation  in  recent  years  to  the  taking  of 
remnants  which  are  very  small  and  obviously  unsuitable 
for  building  purposes.  Some  ten  years  ago  it  refused 
to  sanction,  in  connection  with  some  street  improvements, 
5 


56  EXCESS  CONDEMNATION 

the  taking  of  remnants  of  land  whose  area  exceeded  six 
hundred  and  fifty  square  feet.  In  fact,  it  has  sometimes 
been  asserted  that  the  Council  of  State  has  seriously  im- 
paired the  utility  of  the  remnant  law  by  preventing  the 
city  from  acquiring  property  which  can  never  be  suitably 
developed  as  long  as  it  remains  in  the  hands  of  its  present 
owners.  The  general  result  of  this  stricter  policy,  how- 
ever, has  been  to  increase  the  confidence  of  the  land- 
owners in  the  wisdom  and  fairness  of  the  city's  program 
of  improvement,  and  to  secure  a  degree  of  cooperation 
from  such  owners  which  was  before  impossible.  The 
experience  of  Paris  would  seem,  on  the  whole,  to  indicate 
that  whatever  recoupment  the  city  secures  from  the  con- 
demnation and  resale  of  remnants  of  land  should  be 
purely  incidental  to  the  main  purpose  of  the  project  and 
should  not  be  allowed  to  lure  the  city  into  an  unwise  and 
unjust  extension  of  that  plan.^* 

If  the  French  acts  of  1852  and  1864  were  unwisely 
liberal  in  permitting  the  exercise  of  the  power  of  con- 
demning remnants  of  land  for  the  purpose  of  recoup- 
ment, the  act  passed  in  1910  in  the  German  state  of 
Wiirtemberg  goes  to  the  other  extreme.  By  the  pro- 
visions of  this  law  the  municipality  is  precluded  from 
making  any  profit,  however  small,  from  the  resale  of  the 
remnants  condemned.  The  city  is  given  liberal  power 
to  acquire  land.     It  may  condemn  the  whole  of  any  single 

3*  In  1912  an  act  was  passed  modifying  the  decree  of  1852  in 
some  particulars.  This  later  law  authorizes  the  city  of  Paris  to 
condemn  remnants  of  land  which,  by  reason  of  size  or  shape, 
are  unsuited  to  the  erection  of  sanitary  buildings  or  structures 
compatible  with  the  importance  and  beauty  of  the  street. 

Coupled  with  this  is  a  provision  requiring  the  city  to  take  a 
remnant  of  land  upon  the  demand  of  its  owner  when  such  a 
remnant  is  less  than  half  the  area  of  the  entire  plot  and  not  more 
than  150  square  metres  in  size.  Law  of  April  10,  1912,  found 
in  Collection  Complete  des  Lois,  etc.  (new  series),  Vol.  XII. 


PROBLEM  OF  REMNANTS  OF  LAND       57 

lot,  part  of  which  is  needed  for  any  object  of  rehabilita- 
tion such  as  the  clearance  of  insanitary  or  burnt  districts. 
Or  when  new  streets  are  opened  up  and  remnants  are 
left  which  prevent  the  desirable  use  of  the  adjoining 
land,  the  city  may  condemn  such  remnants  provided  they 
are  single  plots.  But  in  either  case,  the  owners  of  the 
adjacent  property  may  compel  the  city  to  sell  the  rem- 
nants to  them  at  the  price  at  which  they  were  con- 
demned.^^ 

This  has,  of  course,  two  results.  It  removes  any  temp- 
tation which  the  city  might  have  to  acquire  remnants 
unwisely  and  unjustly  merely  for  the  sake  of  making  a 
profit.  But  it  also  requires  that  the  city  abandon  to 
the  adjacent  owner  who  desires  to  secure  the  remnant  an 
increment  in  the  value  of  the  remnant  to  which  the  city 
itself  is  clearly  entitled.  .While  it  is  undoubtedly  true 
that  the  city  ought  to  use  excess  condemnation  for  rev- 
enue purposes  only  when  it  is  made  applicable  to  all  abut- 
ting lands  in  like  manner,  there  seems  to  be  no  reason 
why  it  may  not  legitimately  enjoy  the  profit  which  is 
purely  incidental  to  the  policy  of  condemning  and  re- 
plotting  remnants. 

In  the  Municipal  Act  of  Ontario,  provision  is  made 
for  the  condemnation  of  remnants  for  a  somewhat  lim- 
ited purpose,  but  the  city  is  left  free  to  dispose  as  profit- 
ably as  it  can  of  the  surplus  land  so  taken.  This  statute 
provides  that. 

Where,  in  the  exercise  of  its  powers  of  acquiring  or  expro- 
priating land,  it  appears  to  the  Council  that  it  can  acquire  a 
larger  quantity  of  land  from  any  particular  owner  at  a  more 
reasonable  price  and  on  terms  more  advantageous  than  those 
upon  which  it  could  obtain  the  part  immediately  required  for 

88  Kissan,  B.  W.,  op.  cit.,  Par.  loi. 


58  EXCESS  CONDEMNATION 

its  purposes,  the  Council  may  acquire  or  expropriate  such 
larger  quantity  and  may  afterwards  sell  and  dispose  of  so 
much  of  it  as  is  not  required.^^ 

The  primary  aim  of  this  law  is  to  bring  about  economy  in 
the  acquisition  of  land.  The  city  is  to  acquire  the  land 
needed  at  the  best  possible  figure,  and  if  it  is  cheaper  to 
take  all  of  a  man's  property  than  to  take  part  of  it  and 
leave  a  remainder,  the  city  should  take  it  all.^^  This 
power  has  been  of  great  advantage  to  the  city  of  Toronto 
and  has  made  possible  the  saving  of  considerable  sums  of 
money  in  the  acquisition  of  lands  for  corporate  uses. 
The  law  does  not  contemplate  condemning  remnants  for 
the  purpose  of  replotting  them,  unless  they  can  be  acquired 
under  the  favorable  financial  conditions  just  mentioned. 
The  city  is  to  take  no  risks  and  condemn  no  remnants 
merely  because  convenience  or  esthetic  considerations 
might  suggest  it.  The  law  does  not,  therefore,  provide  a 
really  thoroughgoing  program  for  dealing  with  land  rem- 
nants. 

There  is  no  such  limitation  as  this  in  the  section  of 
the  Halifax  city  charter  dealing  with  the  condemnation 
of  remnants.  Under  this  provision  the  city  council  may 
exercise  this  power  for  any  reason  which  seems  to  it 
sufficient.  "If  the  engineer  reports  that  it  is  expedient 
to  do  so,  the  Council  may  include,  in  the  land  to  be  ex- 
propriated, the  whole  of  any  property,  a  part  only  of 
which  is  required  for  the  purpose  for  which  the  expro- 
priation is  to  be  made."  ^^  The  city  may  then  resell  the 
surplus  and  apply  the  proceeds  to  the  cost  of  the  im- 

36  Revised  Statutes  of  Ontario,  Ch.  192,  Sec  322. 

37  Statement  of  William  Johnston,  City  Solicitor  of  Toronto,  iii 
a  letter  dated  May  2,  igi6,  addressed  to  Thomas  Adams,  Commis- 
sioner of  Conservation,  Ottawa,  Ontario. 

8«  Halifax  City  Charter,  1914,  Sees.  683,  698, 


PROBLEM  OF  REMNANTS  OF  LAND       59 

provement.  The  assistant  city  engineer  of  Halifax 
writes  as  follows  regarding  the  working  of  the  plan : 

The  reason  of  the  inclusion  in  the  city  charter  of  this  clause 
was  that  very  often,  in  expropriating  lands  for  widening 
streets,  we  may  take  one-quarter  or  one-half  of  the  lot,  leav- 
ing enough  for  building  purposes  yet  destroying  the  lot  to 
such  an  extent  that,  with  the  ordinary  board  of  arbitrators, 
the  owner  would  be  awarded  compensation  amounting  to  the 
total  value  of  the  lot.  We  have  used  the  power  given  under 
this  clause  on  a  few  occasions,  and  have  found  that  it  works 
pretty  satisfactorily  and  gives  us  a  chance  to  get  some  return 
on  the  money  spent  in  acquiring  the  property. ^^ 

The  city  of  Halifax  has  full  discretion  in  determining 
what  remnants,  if  any,  it  will  condemn  and  at  what 
price  it  will  finally  resell  them.  It  seems  to  be  a  more 
satisfactory  provision  than  that  of  any  of  the  other  for- 
eign countries  which  have  attempted  to  deal  with  the 
problem. 

The  first  attempt  made  to  confer  on  an  American  city 
the  right  to  acquire  remnants  of  land  by  eminent  domain 
was  in  a  New  York  statute  of  1812  giving  that  power  to 
the  city  of  New  York.*"  The  American  provisions  for 
condemning  remnants  have  never  varied  much  from  the 
general  lines  laid  down  in  this  early  law.  When  only  a 
part  of  a  man's  estate  was  necessary  for  a  public  im- 
provement, the  proper  city  authorities  "  if  they  deem  it 
expedient  and  proper  to  do  so  "  might  include  such  re- 
mainder in  the  land  to  be  condemned.  Whatever  portion 
of  this  surplus  land  was  not  needed  by  the  city  for  a 
public  use  might  be  sold  and  the  proceeds  applied  to  the 
cost  of  making  the  improvement.     The  city  of  New  York 

39  Mr.  H.  W.  Johnston,  in  a  letter  to  the  author,  June  5,  1916. 
■*o  Laws  of  18 1 2,  Ch.  174,  Sec.  3. 


6o  EXCESS  CONDEMNATION 

made  use  of  this  plan  in  connection  with  several  early 
street  improvements."  In  1834,  however,  the  law  was 
declared  unconstitutional  by  the  highest  court  of  the 
state  on  the  ground  that  it  authorized  a  taking  of  private 
property  for  a  purpose  which  was  not  public  in  char- 
acter.*^ 

As  early  as  1810,  the  problem  of  remnants  of  land 
had  become  acute  in  the  city  of  Charleston,  South  Caro- 
lina, in  connection  with  the  widening  of  streets.  The 
various  efforts  of  the  legislature  to  meet  this  situation 
are  described  in  the  opinion  of  the  Supreme  Court  of  the 
state  in  the  case  of  Dunn  vs.  City  Council  of  Charles- 
ton.*^ The  city  at  first  had  the  power  to  condemn  only 
the  land  which  was  actually  needed  for  the  street  itself. 
Individual  owners  complained  bitterly,  however,  that 
worthless  fragments  of  lots  were  thus  left  upon  their 
hands.  To  relieve  this  situation,  a  law  was  passed 
compelling  the  city  to  buy  such  mutilated  lots  as  were 
of  no  value,  and  pay  for  them  by  special  assessments 
upon  the  property  benefited  by  the  improvement.  This 
plan  was  not  successful,  and  a  law  was  passed,  in  1817, 
giving  the  city  authority  to  take  such  remnants  by  right 
of  eminent  domain.  The  city  proceeded  without  much 
delay  to  exercise  this  new  power.  It  condemned,  not 
only  that  portion  of  Dunn's  property  which  was  needed 
for  a  street  improvement,  but  also  a  large  and  valuable 
remnant.  This  remnant,  taken  over  the  protest  of  Dunn, 
was  sold  by  the  city,  after  the  completion  of  the  improve- 
ment, for  twice  the  amount  which  the  city  had  paid  for  it. 
Dunn  appealed  to  the  courts  and  in  1824  the  Supreme 

<i  Brief  but  interesting  data  regarding  these  early  projects  is 
found  in  H.  S.  Swan's  monograph,  op.  cit.,  p.  54. 

<2In  Matter  of  Albany  Street,  11  Wend.,  149,  infra,  p.  285f?. 

*3  For  full  discussion  of  the  case  of  Dunn  vs.  City  Council  of 
Charleston  see  infra,  p.  281  flf. 


PROBLEM  OF  REMNANTS  OF  LAND       6i 

Court  of  the  state  construed  the  law  in  question  in  such 
a  way  as  to  give  to  the  city  of  Charleston  the  right  to 
condemn  only  such  land  as  was  actually  to  be  used  in 
constructing  the  street.  It  is  quite  true  that  the  statute 
of  1817  was  somewhat  ambiguously  worded,  but  there 
seems  to  be  little  question  that  the  legislature  had  in- 
tended to  confer  upon  the  city  the  full  power  of  con- 
demning remnants  of  land  —  a  power  similar  to  that  con- 
ferred by  the  New  York  act  of  181 2.  The  court,  how- 
ever, convinced  that  the  condemnation  of  remnants  was 
not  a  legitimate  exercise  of  the  right  of  eminent  domain, 
gave  the  statute  a  somewhat  strained  interpretation  in 
order  to  avoid  the  necessity  of  declaring  it  unconstitu- 
tional.** 

In  1868  the  legislature  of  Pennsylvania  conferred  upon 
the  Fairmount  Park  Commission  of  Philadelphia  the 
authority  to  condemn  remnants  of  land  and  resell  them.*** 
The  only  instance  discovered  in  which  this  power  was 
used  occurred  a  few  years  ago.  A  triangle  of  land, 
about  three  acres  in  area,  located  at  Thirty-third  and 
Ridge  Streets  was  condemned.  The  city  later  exchanged 
this  plot,  which  formed  a  valuable  building  site,  for  sev- 
enty-five acres  of  land  in  Roberts  Hollow  which  it  desired 
for  park  purposes.*® 

By  far  the  most  interesting  and  important  act  provid- 
ing for  excess  condemnation  of  remnants  of  land  has 
been  passed,  however,  by  the  state  of  Massachusetts.  In 
1903  a  special  committee  of  the  state  legislature  submit- 
ted the  elaborate  report  upon  the  subject  of  excess  con- 
demnation already  mentioned.*^     The   recommendations 

**  Harper's  Law  Report,  S.  C.  189  (1824). 
*'  Laws  of  1868,  No.  1020. 

*8The  writer  is  indebted  for  this  information  to  Mr.  Andrew 
Wright  Crawford,  Secretary  of  the  Art  Jury  of  Philadelphia. 
*7  Supra,  p.  54. 


62  EXCESS  CONDEMNATION 

of  this  commission  were  embodied  in  part  in  a  draft  of 
a  proposed  statute  providing  for  the  condemnation  and 
replotting  of  remnants.  There  are  five  features  of  this 
proposed  law  which  are  worthy  of  note.  First,  it  gave 
cities  the  power  to  condemn  unusable  remnants  of  land. 
In  the  second  place,  it  authorized  the  city  to  offer  such 
a  remnant  to  the  owner  of  the  adjoining  parcel  with 
which  the  public  authorities  deemed  it  wise  to  unite  the 
remnant  at  a  price  fixed  by  an  elaborate  system  of  ap- 
praisal. Third,  if  this  offer  was  not  accepted  the  city 
might  condemn  the  whole  or  any  portion  of  the  property 
of  such  adjoining  owner.  Fourth,  all  the  surplus  land 
taken  under  the  provisions  of  the  act  should  be  sold  at 
public  auction.  Fifth,  the  owner  of  a  remnant  the  area 
of  which  was  not  more  than  one  thousand  square  feet 
might  compel  the  city  to  purchase  it.*®  Such  a  law  would 
allow  a  municipality  to  condemn  not  merely  remnants 
of  land  but  enough  additional  land  to  make  possible  an 
adequate  replotting  of  such  remnants  into  suitable  build- 
ing lots.  The  legislature  was  unwilling  to  go  to  this 
extent,  however,  and  contented  itself  with  passing,  in 
1904,  an  act  allowing  cities  to  condemn  merely  the  rem- 
nants of  land  left  by  the  construction  of  an  improve- 
ment.*^ This  is  a  very  elaborate  law  of  some  thirty  sec- 
tions setting  forth  in  great  detail  the  exact  procedure  to 
be  followed  at  every  stage  of  the  process  of  taking  and 
disposing  of  such  remnants.  The  most  significant  part 
of  the  statute  is  the  second  section  which  reads : 

The  Commonwealth,  or  any  city  in  the  Commonwealth  so  far 
as  territory  within  the  limits  is  concerned,  may,  in  the  man- 
ner hereinafter  set  forth,  take  in  fee,  by  right  of  eminent  do- 

48  Massachusetts  House  Document  No.  288  (1904),  PP-  15-20. 
*9  Acts  of  1904,  Ch.  443. 


PROBLEM  OF  REMNANTS  OF  LAND       63 

main,  the  whole  of  any  estate,  part  of  which  is  actually  re- 
quired for  the  laying  out,  alteration  or  location  by  it  of  any 
public  work,  if  the  remnant  left  after  taking  such  part  would 
from  its  size  or  shape  be  unsuited  for  the  erection  of  suitable 
and  appropriate  buildings,  and  if  public  convenience  and 
necessity  require  such  taking. 

It  is  important  to  note  that  this  law  does  not  confer 
upon  the  city  or  state  unlimited  discretion  in  the  taking 
of  remnants.  The  land  which  may  be  condemned  in 
excess  of  actual  need  is  only  that  which  is  not  suitable 
for  independent  development.  In  other  words,  no  broad 
power  seems  to  be  given  to  condemn  all  estates,  any  part 
of  which,  however  small,  may  be  needed  for  actual  public 
use.  The  report  of  the  Joint  Board  on  Metropolitan 
Improvements,  submitted  to  the  Massachusetts  legislature 
in  191 1,  shows  how  relatively  limited  is  the  power  actually 
conferred  by  this  act.  One  of  the  proposals  made  by  this 
board  was  the  creation  of  a  business  thoroughfare  be- 
tween the  two  leading  railway  terminals  of  Boston.°°  In 
order  to  open  this  thoroughfare,  it  would  be  necessary 
to  take  for  actual  street  purposes  all  or  part  of  one  hun- 
dred and  fifty-eight  separate  estates.  If  the  city  should 
use  the  power  granted  by  the  act  of  1904  and  condemn 
in  addition  to  the  land  actually  needed  for  the  street  such 
remnants  as  would  be  definitely  unsuited  for  the  erection 
of  appropriate  buildings,  it  would  then  condemn  fifty-two 
additional  parcels  with  an  area  of  48,274  square  feet. 
This,  it  was  held,  was  all  that  a  fair  construction  of  the 
Remnants  Act  would  allow  the  city  to  take  by  eminent 

6oFi«a/  Report  of  the  Joint  Board  on  Metropolitan  Improve- 
ments, 191 1.  Pages  110-113  comprise  "Plan  for  the  Extension  of 
Northern  Avenue,  Boston,  Establishing  a  New  Traffic  Thorough- 
fare and  a  Location  for  a  Tunnel  Between  the  North  and  South 
Terminals."  Revised  Estimates  by  Leslie  C.  Wead,  November, 
1910. 


64  EXCESS  CONDEMNATION 

domain.  If,  however,  the  city  took  the  whole  of  every 
plot  of  which  it  needed  any  part, —  that  is,  if  it  acquired 
all  the  one  hundred  and  fifty-eight  holdings  just  men- 
tioned,—  it  would  take  193,474  square  feet  lying  outside 
the  boundaries  of  the  street.  On  the  other  hand,  if  the 
city  could  exercise  the  powers  conferred  by  the  act  pro- 
posed by  the  commission  of  1903,  and  could  condemn  not 
only  the  remainders  left  by  the  improvement  but  also  such 
adjoining  estates  as  might  be  needed  to  make  possible  the 
suitable  replotting  and  development  of  the  whole  tract,  it 
would  acquire  one  hundred  and  twenty-one  additional 
holdings,  no  part  of  which  was  needed  for  street  pur- 
poses and  comprising  223,664  square  feet.  Under  this 
third  plan,  the  entire  amount  of  land  taken  lying  outside 
the  boundaries  of  the  thoroughfare  would  be  417,138 
square  feet.°^ 

It  is  apparent,  therefore,  that  the  famous  Remnants 
Act  of  1904  does  not  confer  upon  the  cities  of  Massa- 
chusetts the  widest  powers  that  are  possible  in  dealing 
with  land  remnants. 

None  of  these  three  plans  for  opening  a  business  thor- 
oughfare in  the  city  of  Boston  has  ever  been  carried 
out.     In  fact,  Boston  seems  as  yet  not  to  have  availed 

"  The  report  of  the  board  contains  some  interesting  estimates  of 
the  financial  resuUs  of  these  three  plans.  Assuming  that  the  city 
disposed  of  its  surplus  land  at  a  reasonable  price,  it  was  estimated 
that  the  net  return  derived^  from  such  resale  would  be  $290,280 
greater  if  all  the  one  hundred  and  fifty-eight  estates  were  taken, 
than  it  would  if  the  city  acquired  merely  the  unusable  remnants ; 
while  if  the  one  hundred  and  twenty-one  adjoining  parcels  were 
also  condemned,  the  net  cost  of  the  entire  improvement  would  be 
$1,570,075  less  than  under  the  second  plan.  The  board  felt,  how- 
ever, that  there  were  so  many  risks  incident  to  the  operation  of 
the  two  more  radical  policies,  that  it  would  be  wiser  for  the  city 
to  confine  itself  to  the  narrower  program  outlined  in  the  act  of 
1904.  , 


PROBLEM  OF  REMNANTS  OF  LAND       65 

itself  of  its  power  of  condemning  remnants  of  land.  The 
little  actual  experience  which  has  been  had  under  the  act 
of  1904  has  taken  place  in  the  city  of  Springfield, 
where  remnants  have  been  condemned  in  connection 
with  several  projects  for  the  widening  or  alteration  of 
streets. 

The  most  interesting  of  these  undertakings,  and  the 
one  which  gives  perhaps  the  clearest  idea  of  the  actual 
working  of  the  Remnants  Act,  is  the  Fulton  Street  widen- 
ing, which  was  begun  in  1914  and  is  now  nearing 
completion. 

The  purpose  of  this  improvement  is  to  widen  Fulton 
Street  from  thirty-three  to  seventy  feet  for  five  blocks, 
or  a  distance  of  about  five  hundred  yards.  The  district 
was  not  very  attractive ;  one  side  of  the  street  was  built 
up,  for  the  most  part,  with  medium  sized  frame  build- 
ings and  the  other  side  was  given  over  to  railroad  yards 
and  warehouses.  The  land  necessary  for  the  widening 
was  all  taken  from  that  side  on  which  were  the  separate 
buildings.  To  move  the  street  line  back  upon  these  abut- 
ting properties  a  distance  of  thirty-seven  feet  was,  of 
course,  to  run  it  squarely  through  most  of  these  buildings 
and  some  thirty  of  them  had  to  be  destroyed  or  moved. 
In  a  majority  of  cases  the  remnants  of  the  lots  thus 
mutilated  were  quite  small  and  the  owners  were  willing 
to  have  the  city  acquire  the  entire  plots  instead  of  leav- 
ing the  remainders  on  their  hands.  This  the  city  deemed 
it  advisable  to  do  and  the  transfer  of  the  greater 
number  of  these  parcels  was  accomplished  simply  by 
private  agreement  with  the  owners.  There  were  six 
properties,  however,  which  could  not  thus  be  acquired 
by  agreement  with  the  owners,  and  it  still  seemed  to  the 
board  of  public  works  that  public  policy  demanded  the 
taking  of  these  plots.    They  were  accordingly  condemned 


66  EXCESS  CONDEMNATION 

by  the  city,  under  authority  of  the  act  of  1904.^^  It 
seemed  to  the  city  authorities  that  it  was  wiser  and  more 
economical  to  acquire  this  surplus  land  than  to  take 
merely  what  would  be  used  for  street  purposes.  It  is 
too  early  as  yet,  however,  to  determine  just  what  the 
financial  results  of  this  excess  condemnation  will  be. 
The  city  still  holds  these  remnants  and  has  turned  the 
largest  one  over  for  the  use  of  its  street  department. 
There  has  been  no  replotting  as  yet,  and  as  there  is  still 
a  good  deal  of  work  left  to  be  done  in  the  actual  widen- 
ing of  the  street,  the  precise  effect  of  the  improvement 
upon  surrounding  land  values  is  not  accurately  known. 
A  glance  at  the  table  showing  the  size  of  the  remnants 
of  land  condemned  in  this  street  widening  will  indicate 
that  a  very  liberal  construction  was  placed,  in  one  or  two 
instances,  upon  the  authority  conferred  by  the  act  of 

52  The  accompanying  table  shows  the  size  and  value  of  the  rem- 
nants thus  condemned. 


AREA  IN 

LAND 

BUILDING 

NAME 

SQ.FT. 

DAMAGES 

DAMAGES 

TOTAL 

Joseph  Menard — 

44.13'  front 

1,062 

$3,919 

$    800 

$4,719 

21. 1     deep 

Conn.  Rw.  R.  R.  Co.- 

- 

41-33' 

1,112 

3,98s 

700 

4.68s 

27.1 

Mary  A.  Barrett— 

41.16' 

1,134 

3^ 

600 

4,406 

27.6 

Thom.  E.  King— 

38./ 

875 

3,153 

800 

3,953 

22.96 

Michael  J.  Dam — 

106.55' 

6,334 

20,876 

S.892 

26,768 

59-5 

Benj.  S.  Albert— 

80.' 

1,852 

6,219 

2,000 

8,219 

25-5 

PROBLEM  OF  REMNANTS  OF  LAND       ^J 

1904.  It  has  already  been  made  clear  that  that  act 
contemplated  the  taking  of  such  remnants  as  were  unsuit- 
able for  the  erection  of  appropriate  buildings,  and  which 
the  public  convenience  and  necessity  might  require  should 
be  condemned.  It  is  probably  fair  to  say  that  lots  which 
are  but  twenty-five  feet  deep  are  not  suitable  for  the  erec- 
tion of  appropriate  buildings.  But  a  lot  with  a  frontage 
of  one  hundred  and  six  feet,  a  depth  of  sixty  feet  and 
an  area  of  6,334  square  feet  would  seem  to  be  in  a  dif- 
ferent class.  If  this  is  a  remnant  within  the  meaning  of 
the  statute,  it  is  hard  to  see  where  the  line  is  to  be  drawn 
between  parcels  which  are  small  enough  to  be  taken  and 
those  which  are  too  large.  In  this  particular  instance, 
the  owner  did  not  feel  that  this  large  remainder  was  of 
sufficient  size  to  use  to  advantage  in  his  particular  line 
of  business,  and  apparently  did  not  object  to  the  condem- 
nation of  his  land.  Had  he  cared  to  contest  the  taking, 
it  seems  unlikely  that  the  right  of  the  city  to  condemn  so 
large  a  remnant  would  have  been  upheld.  It  is  probable, 
also,  that  had  he  raised  serious  objection  the  city  would 
have  declined  to  enter  upon  so  doubtful  a  proceeding.^' 
A  somewhat  detailed  analysis  has  been  given  of  the 
various  American  and  foreign  provisions  embodying  the 
right  to  use  excess  condemnation  for  the  handling  of 
remnants  of  land.  Such  information  as  is  available  in 
regard  to  the  practical  working  of  these  provisions  has 
been  briefly  presented,  rather  than  at  length.  None  of 
them  can  escape  serious  criticism  when  viewed  as  a  thor- 
oughgoing solution  of  the  time  honored  and  vexed  prob- 
lem arising  from  remnants  of  land,  and  yet  there  is  much 

83  For  all  the  information  relating  to  this  project  the  writer  is 
indebted  to  the  courtesy  of  Mr.  Charles  H.  Slocum,  Assistant  City 
Engineer  of  the  city  of  Springfield,  and  Clerk  of  the  Board  of 
Public  Works. 


68  EXCESS  CONDEMNATION 

of  value  in  each  of  them.  There  has  been  too  little  ex- 
perience with  the  plan,  as  yet,  to  warrant  the  drawing  of 
any  infallible  conclusions  regarding  the  best  type  of  law 
for  accomplishing  this  purpose.  The  following  conclu- 
sions make  no  claim  to  infallibility.  It  is  submitted,  how- 
ever, that  there  are  three  features  which  are  essential  to 
any  statute  which  would  offer  a  really  effective  remedy 
for  the  evil  of  land  remnants. 

In  the  first  place,  a  city  should  be  given  the  authority 
to  condemn  remnants  of  land  for  two  purposes:  first,  to 
effect  a  saving  of  money  to  the  city ;  and  second,  to  secure 
adequate  building  sites  along  any  public  improvement. 
In  the  first  place,  it  should  be  permissible  to  condemn 
a  remnant  when  the  cost  of  acquiring  the  whole  of  an 
estate  would  be  less  than  the  cost  of  taking  only  part 
and  paying  damages  on  the  remainder.  In  other  words, 
when  it  is  necessary  to  take  a  remnant  in  order  to  secure 
at  the  best  price  what  the  city  needs  for  the  purposes  of 
its  improvement,  the  remnant  should  be  taken.  It  is 
not,  however,  legitimate  to  condemn  remnants  of  land 
which  the  city  has  no  other  good  reason  for  taking, 
merely  because  their  resale  would  give  the  city  a  profit. 
No  attempt  is  made  at  this  juncture  to  pass  judgment 
upon  the  merits  of  a  policy  of  excess  condemnation  car- 
ried on  for  the  purpose  of  recoupment.  It  is  urged, 
however,  that  to  enter  into  a  policy  of  condemning  only 
remnants  of  land  for  that  purpose  would  result  in  serious 
practical  difficulties  and  gross  injustice  to  private  citi- 
zens. It  is  legitimate  to  take  remnants  of  land  in  order 
to  save  money,  it  is  not  legitimate  to  take  them  solely 
in  order  to  make  money.  Aside  from  this  motive  of 
economy,  remnants  should  be  condemned  only  when  nec- 
essary in  order  to  secure  suitable  building  sites  abutting 
on  a  public  improvement.    The  wording  of  the  Massa- 


PROBLEM  OF  REMNANTS  OF  LAND      69 

chusetts  act  covers  the  case,  in  specifying  that  the  whole 
of  a  lot  may  be  taken,  "  if  the  remnant  left  after  taking 
such  part  would  from  its  size  or  shape  be  unsuited  for 
the  erection  of  suitable  and  appropriate  buildings,  and  if 
public  convenience  and  necessity  require  such  taking." 
To  condemn  the  whole  of  a  large  estate,  however,  be- 
cause a  few  feet  have  been  sliced  off  from  it  for  street 
purposes,  and  to  leave  untouched  the  adjoining  lot  which 
may  be  smaller,  merely  because  it  has  not  been  so  dis- 
turbed, is  to  lose  sight  of  the  real  nature  of  the  evil  of 
land  remnants  and  is  to  discriminate  unfairly  between  the 
two  owners.  If  the  city  wishes  to  condemn  large  parcels 
of  abutting  land  in  order  to  assure  their  proper  develop- 
ment or  control  their  use,  it  should  secure  broader 
powers  of  excess  condemnation  and  should  exercise  them 
with  uniformity.  It  should  not  attempt  to  use  its  power 
to  condemn  remnants  for  purposes  which  have  nothing 
to  do  with  the  problem  of  remnants. 

The  second  essential  of  a  satisfactory  law  for  the  con- 
trolling of  remnants  is  the  power  of  the  city  to  dispose 
of  the  land  not  needed  for  actual  public  use  on  the  best 
terms  possible.  The  city  ought  not  to  take  remnants  of 
land  for  the  sole  purpose  of  making  money.  When  there 
is  a  legitimate  reason,  however,  for  taking  the  rem- 
nant, the  city  is  fairly  entitled  to  whatever  measure  of 
profit  or  recoupment  it  may  make  by  reselling  that  rem- 
nant at  the  highest  possible  price.  To.  compel  the  city 
to  dispose  of  such  land  at  the  price  paid  for  it,  is  to 
bestow  as  a  gift  upon  the  purchaser  a  value  created 
entirely  by  the  city's  money  and  enterprise. 

The  third  element  in  a  thoroughgoing  scheme  for  hand- 
ling land  remnants  is  a  provision  allowing  the  city  to 
effect  a  satisfactory  replotting  of  such  fragments  and 
the  land  adjoining  them  when  that  is  necessary.    When 


70  EXCESS  CONDEMNATION 

the  city  takes  a  parcel  of  land  which  is  quite  unusable 
because  of  its  size  or  shape,  it  is  essential  to  the  public 
interest  that  this  fragment  be  merged  with  one  of  the 
adjacent  plots.  There  should  be  a  method  of  compell- 
ing this  merging,  if  it  -cannot  be  accomplished  by  private 
agreement.  If  the  owners  of  the  property  surrounding 
the  remnant  refuse  to  buy  it  at  a  fair  price,  the  city 
should  be  given  the  power  to  condemn  enough  of  that 
adjoining  land  to  permit  the  satisfactory  replotting  of 
the  district.  The  city  could  thus  be  sure  that  all  the  land 
abutting  on  an  improvement  is  made  available  for  appro- 
priate buildings  and  would  not  be  placed  in  the  absurd 
position  of  condemning  an  unusable  remnant,  and  then 
keeping  it  or  reselling  it  without  making  it  any  more 
usable.  If  the  city  has  power  to  compel  an  adjoining 
owner  either  to  buy  a  remnant  or  to  sell  his  property  at 
a  fair  price,  he  would,  in  nine  cases  out  of  ten,  choose 
to  buy  the  remnant  and  the  desired  adjustment  would  be 
made  without  any  drastic  action  by  the  city.  In  the  tenth 
case,  the  city  could  still  protect  its  interests  and  prevent 
the  blighting  eflfect  of  a  useless  scrap  of  land.  It  is 
hard  to  see  how  the  city  can  be  sure  of  securing  a  satis- 
factory replotting  of  land  remnants  without  this  power. 
An  effective  policy  of  dealing  with  remnants  of  land 
ought,  then,  to  involve  these  three  things :  the  power  of 
the  city  to  condemn  remnants  when  it  would  save  money 
to  do  so  or  when  they  are  unsuitable  for  independent 
use ;  the  power  to  dispose  of  such  remnants  at  the  terms 
most  advantageous  to  the  city;  and  the  power  to  secure 
an  adequate  replotting  of  those  remnants  by  compelling 
the  owners  of  adjoining  property  either  to  buy  or  to  sell. 
If  the  city  enjoys  these  powers,  it  is,  so  far  as  this  par- 
ticular problem  is  concerned,  the  master  of  its  own  des- 
tiny.    It  is  no  longer  at  the  mercy  of  any  stubborn  in- 


PROBLEM  OF  REMNANTS  OF  LAND       ^\ 

dividual  who  happens  to  own  a  worthless  fragment  of 
land.  It  is  in  a  position  to  protect  the  public,  as  well 
as  the  abutting  property  owners,  from  all  the  disfiguring 
and  depreciating  effects  of  land  remnants;  and  at  the 
same  time  it  can  usually  reduce,  in  a  measurable  degree, 
the  cost  of  the  improvement. 

All  this  the  city  can  accomplish  with  the  smallest  pos- 
sible interference  with  individual  liberty  and  property 
rights.  The  other  methods  by  which  cities  have  at- 
tempted to  deal  with  remnants  have  been  examined.  In 
each  case  it  was  clear  that  an  adequate  and  effective 
solution  of  the  problem  was  impossible,  because  the  city 
did  not  possess  the  power  of  independent  and  direct 
action.  In  every  instance  there  was  danger  that  the  pur- 
pose of  the  city  would  be  thwarted,  the  best  interests  of 
the  community  prejudiced,  by  the  persistent  unwilling- 
ness or  inability  of  a  property  owner  to  cooperate  to 
effect  an  adequate  replotting.  In  each  case  it  was  seen 
that  a  larger  measure  of  public  control  was  necessary  if 
the  community  interests  were  to  be  adequately  guarded. 
It  is  believed  that  the  proposed  plan  for  the  condemna- 
tion and  replotting  of  remnants  of  land  goes  far  enough, 
but  not  too  far.  It  confers  upon  the  city  sufficient  power 
to  deal  effectively  with  this  difficult  problem,  but  gives 
it  no  unnecessary  authority. 

The  value  of  these  other  means  of  dealing  with  rem- 
nants of  land  should  not  be  underrated.  There  is  no 
need  even  to  give  up  using  them.  It  is  only  necessary 
to  abandon  them  as  exclusive  policies.  There  is  no  rea- 
son why  property  owners  should  not  cooperate  in  the 
replotting  of  their  lands,  and  the  more  they  do  so  the 
better.  There  is  no  reason  why  the  municipality  should 
not  aid  and  encourage  that  cooperation  by  every  means 
in  its  power.  It  seems  only  just  that  the  city  should  be 
6 


72  EXCESS  CONDEMNATION 

compelled  to  purchase  the  whole  of  an  estate  which  it 
has  hopelessly  mutilated,  if  the  owner  wishes  to  sell  the 
remnant.  Such  a  provision  should  be  made  an  adjunct 
to  every  statute  dealing  with  the  remnant  problem. 
When  the  municipality  has  the  power  to  guarantee  the 
satisfactory  replotting  of  such  fragments,  the  necessity 
of  taking  them  ceases  to  be  an  unreasonable  burden. 
The  owner  protects  himself  by  selling  the  remnant,  the 
city  protects  itself  by  replotting  it.  It  may  be  that  such 
elements  of  the  famous  Lex  Adickes  as  are  applicable 
to  American  conditions  might  wisely  be  transplanted  to 
this  country.  There  is  nothing  in  any  of  these  plans 
which  is  essentially  incompatible  with  the  proposed  policy 
of  excess  condemnation.  But  whichever  one  of  these  less 
vigorous  policies  is  retained,  or  if  they  are  all  retained  as 
they  might  well  be,  the  city  should  still  be  given  the  power 
to  take  remnants  of  land  by  eminent  domain  together 
with  enough  adjoining  land  to  effect  their  assimilation. 
It  might  not  be  necessary  to  use  that  power  frequently; 
it  should  be  possible  to  use  it  when  it  is  necessary. 

In  an  earlier  chapter  it  was  stated  that  excess  con- 
demnation as  a  solution  of  the  problem  of  land  rem- 
nants was  easily  defensible  in  principle,  unless  it  should 
be  found  that  some  other  less  drastic  solution  should 
prove  equally  effective.***  It  is  now  possible  to  venture 
the  conclusion,  not  merely  that  excess  condemnation 
furnishes  the  best  solution  available  for  that  problem, 
but  also  that  it  is  the  only  policy  which  adequately  and 
effectively  meets  the  public  need.  It  strikes  the  wisest 
and'  fairest  balance  between  social  control  and  the  pro- 
tection of  individual  rights. 

"  Ch.  I,  p.  13. 


CHAPTER  III 

EXCESS    CONDEMNATION   FOR   THE   PROTECTION    OF   PUBLIC 
IMPROVEMENTS 

One  of  the  principal  purposes  for  which  it  is  proposed 
to  use  excess  condemnation  is  to  protect  pubHc  improve- 
ments by  preventing  the  adjoining  property  from  being 
put  to  uses  which  directly  or  indirectly  injure  those  im- 
provements and  prevent  them  from  serving  in  the  fullest 
degree  the  ends  for  which  they  were  created.^ 

This  will  very  frequently  be  an  esthetic  protection, 
and  excess  condemnation  is  sometimes  spoken  of  as  a 
means  of  promoting  the  "  city  beautiful."  It  would  be 
a  mistake,  however,  to  regard  it  exclusively  as  a  method 
of  advancing  the  cause  of  civic  beauty.  Just  as  city 
planning  is  not  solely  the  function  of  the  artist  and  the 
architect;  just  as  a  park,  beautiful  as  it  may  be,  is  dedi- 
cated also  to  public  health  and  play;  so  the  protection 
alrorded  by  excess  condemnation  is  not  confined  to  the 
beauty  of  a  public  improvement,  but  extends  to  the 
health,  light,  air,  convenience  and  general  usefulness  of 
it.  It  is  the  purpose  of  this  chapter  to  discuss  excess 
condemnation  as  a  means  of  thus  protecting  public  im- 
provements. 

Those  who  look  upon  excess  condemnation  as  a  means 

1  This  statement  is  of  course  broad  enough  to  include  the  use  of 
excess  condemnation  as  a  means  of  dealing  with  remnants  of  land. 
While  the  taking  and  replotting  of  remnants  is  a  method  of  pro- 
tecting a  public  improvement,  the  evil  to  be  dealt  with  is,  however, 
rooted  in  so  specific  a  cause  and  demands  so  unique  a  remedy  as 
to  warrant  its  isolation  as  a  separate  problem. 

73 


74  EXCESS  CONDEMNATION 

of  conserving  the  beauty  and  convenience  of  the  modem 
city  especially  urge  its  application  to  the  problem  of 
securing  and  preserving  suitable  sites  for  public  buildings 
and  places.  And  since  this  problem  has  several  unique 
and  interesting  features,  it  may  be  well  to  dispose  of  it 
before  proceeding  to  the  more  general  discussion. 

The  problem  of  public  building  sites  is  not  new  in 
American  cities,  and  it  is  a  problem  which  grows  increas- 
ingly acute.  It  is  a  problem  which  arises  as  a  result  of 
the  unbusinesslike  methods  by  which  cities  have  normally 
secured,  and  continue  to  secure,  the  land  needed  for 
public  buildings. 

There  are  three  criticisms  which  may  be  urged 
against  our  present  policy  of  securing  these  locations.  As 
a  matter  of  fact  it  is  not  a  policy  at  all.  It  is  merely  a 
series  of  fortuitous  events  —  crises  in  its  physical  de- 
velopment which  the  city  seems  never  to  foresee,  from 
the  occurrence  of  which  it  learns  no  lesson.  The  first 
indictment  against  the  present  method  of  dealing  with 
this  important  problem  is  that  our  cities  do  not  plan  ahead 
as  to  where  they  will  need  to  locate  public  buildings,  nor 
make  any  provision  in  advance  for  securing  appropriate 
sites.  They  act  upon  the  principle  of  never  crossing  a 
bridge  till  they  come  to  it.  When  a  city  has  grown  suffi- 
ciently to  need  a  new  schoolhouse,  then  there  will  be 
time  enough  to  look  around  and  see  if  a  suitable  site 
can  be  obtained.  And  for  all  this  short-sightedness  the 
city  pays  the  bills,  not  only  in  money  but  also  in  the 
inconvenient  and  inharmonious  location  of  its  public 
buildings.  The  need  for  a  new  public  building  is  fre- 
quently due  to  the  growth  and  development  in  a  certain 
portion  of  the  city.  That  same  growth  and  development 
have  caused  site  values  in  the  vicinity  to  soar.  The  same 
considerations  of  accessibility  which  make  a  particular 


PROTECTION  OF  IMPROVEMENTS        75 

spot  an  advantageous  place  for  a  post-office  may  also 
make  it  an  ideal  place  for  a  business  block  —  and  in  nine 
cases  out  of  ten  the  business  block  gets  there  first.  By 
the  time  the  city  authorities  have  become  convinced  that 
a  public  building  is  necessary,  the  places  where  that 
building  ought  to  be  placed  have  often  long  since  been 
covered  with  buildings  too  costly  to  condemn;  and  even 
the  less  attractive  locations  still  available  are  held  for 
prices  which  are  almost  prohibitive. 

Many  cities  in  the  United  States  have  frequently 
found  themselves  placed  in  just  this  predicament.  Site 
values  in  downtown  New  York  are  perhaps  higher 
than  anywhere  else  in  the  country,  and  the  city  has 
been  obliged,  as  a  result,  to  pay  rnillions  of  dollars  which 
a  more  foresighted  policy  of  planning  for  municipal 
buildings  might  have  saved.  Some  of  the  small  parks 
created  during  the  last  twenty  years,  little  open  spaces 
hemmed  in  by  skyscrapers  or  tenements,  have  cost  the 
city  of  New  York  more  money  than  did  the  vast  tract  of 
land  now  comprising  Central  Park.  In  some  instances 
these  squares  and  public  places  have  been  paid  for  at  the 
rate  of  $5,ooo,ocx)  per  acre,  while,  at  the  same  time,  the 
city,  planning  for  the  future  in  the  outlying  boroughs, 
was  securing  park  land  for  $5,000  an  acre.^  "  The  city 
has  paid  for  school  sites  in  congested  sections  of  Man- 
hattan as  high  as  $20  per  square  foot ;  while  the  average 
price  paid,  per  square  foot,  for  school  sites  in  Brooklyn 
and  the  Bronx,  for  the  last  few  years,  has  been  approx- 
imately $1.50  per  square  foot  and  in  Queens  less  than 
$.75  per  square  foot."  ^  It  is  useless  to  multiply  in- 
stances of  a  condition  of  aflfairs  so  widely  prevalent.     By 

^Report  of  New  York  City  Commission  on  the  Congestion  of 
Population,  igii,  p.  13. 
3  Ibid,  p.  12, 


'^6  EXCESS  CONDEMNATION 

failing  to  look  ahead,  our  cities  are  continually  shutting 
themselves  out  from  the  places  where  the  public  build- 
ings really  ought  to  be,  and  are  paying  exceedingly  high 
prices  for  the  less  attractive  sites  which  are  left. 

Another  weakness  in  our  present  policy  of  securing 
public  building  sites  is  the  failure  to  realize  that  public 
convenience  will  finally  demand  that  some  of  these  build- 
ings should  be  grouped  together,  and  the  failure  to  se- 
cure sites  which  would  make  such  grouping  possible. 
This  does  not  mean  that  every  city  need  have  a  stately 
civic  center  such  as  that  proposed  for  Cleveland  or  Chi- 
cago, where  all  public  buildings  are  to  be  grouped  together 
in  one  splendid  and  symmetrical  scheme.  Nor  does  it 
mean  that  it  is  necessary  to  reproduce  on  a  glorified  scale 
the  town  hall  on  the  square  —  the  useful  if  not  beautiful 
edifice,  comprising  within  its  four  walls  the  offices  of  all 
the  local  officials,  the  public  auditorium,  the  courtroom, 
the  fire  station  and  the  town  lockup.  Not  all  public  build- 
ings need  to  be  put  close  together ;  and  yet,  as  soon  as  a 
town  grows  beyond  the  point  where  every  place  in  it  is 
within  walking  distance  of  every  other  place,  it  is  easy 
to  see  that  there  are  some  buildings  which  should  be 
grouped  and  that  many  of  them  ought  to  be  left  with 
some  open  space  around  them.  The  larger  a  city  grows 
the  more  important  do  these  considerations  become;  and 
it  is  now  generally  recognized  that  the  city's  offices,  its 
court  house,  its  prison  should  be  within  convenient  reach 
of  each  other.  Branch  libraries  and  schools  might  well 
be  grouped  together,  and  there  are  many  public  institu- 
tions which  need  just  the  setting  which  a  location  near 
a  public  park  would  give  them.  It  would  not  seem  un- 
reasonable to  expect  that  the  city  authorities,  in  securing 
sites  for  these  public  buildings,  would  bear  these  things 
more  clearly  in  mind  and  secure,  while  it  is  to  be  had  at  a 


PROTECTION  OF  IMPROVEMENTS         ^^ 

reasonable  price,  land  enough  to  permit  such  a  grouping 
as  soon  as  the  needs  of  the  city  call  for  expansion.  In 
almost  every  instance,  however,  the  city  secures  only 
what  it  needs  to-day  —  a  single  plot  of  ground  on  which 
a  single  building  can  be  erected.* 

The  effect  of  this  tardy  effort  to  bring  about  a  suitable 
grouping  of  public  buildings  is  illustrated  rather  clearly 
by  the  recent  experience  of  New  York  County  in  acquir- 
ing a  site  for  its  new  Court  House.  The  fact  that  the 
grouping  effected  was  a  mixed  grouping  of  county  and 
municipal  buildings  does  not  alter  the  fact  that  the  delay 
in  completing  the  group  has  cost  the  county  a  large  sum 
of  money  which  might  have  been  saved  had  these  in- 
valuable sites  been  secured  when  it  first  became  apparent 
that  they  would  be  needed  for  public  purposes.  The  site 
selected  for  the  Court  House  immediately  adjoins  City 
Hall  Park,  the  Municipal  Building  and  the  Hall  of 
Records.  A  memorandum,  recently  submitted  to  the 
Committee  on  City  Plan  of  the  Board  of  Estimate  and 
Apportionment,  stated: 

The  choic^e  of  this  site  was  made,  not  only  for  the  reason 
that  the  blocks  in  question  were  immediately  contiguous  to 
City  Hall  Park  and  the  present  groupings  of  municipal  build- 
ings, but  for  the  added  reason  that  the  lots  in  question  were 
assessed  at  low  valuations,  and  afforded  an  exceptional  op- 
portunity for  the  development  of  a  new  civic  center  upon  a 
basis  that  ultimately  would  bring  a  very  substantial  return  to 
the  city  in  the  increased  valuation  of  its  own  holdings,  and 

*  The  need  for  more  foresightedness  in  dealing  with  this  problem 
is  becoming  generally  recognized,  and  many  recommendations  are 
coming  from  various  sources  as  to  the  proper  solution.  See  Report 
of  Improvement  Comvussion  of  Nezv  York  City,  1907,  pp.  28-29; 
Grouping  of  Public  Buildings,  Bulletin  No.  2,  Municipal  Art  So- 
ciety, Hartford,  Conn,  1904,  p.  23 ;  Plan  of  Chicago,  Chicago  Com- 
mercial Club,  1909,  pp.  123,  13s;  Plan  of  Seattle,  1911,  p.  34. 


78  EXCESS  CONDEMNATION 

in  the  development  of  the  higher  taxable  values  in  the  ad- 
joining private  property.^ 

In  spite  of  the  fact  that  the  land  acquired  was  assessed  at 
a  low  valuation,  the  city  paid  $6,243,668  for  the  4.2  acres 
which  it  took,^  This  is,  unquestionably,  a  price  somewhat 
higher  than  would  have  been  paid  before  the  erection  of 
the  Municipal  Building,  had  the  Court  House  plans  been 
made  in  time  to  permit  the  securing  of  the  site  at  the  time. 
But,  on  the  other  hand,  the  report  mentioned  clearly  indi- 
cates that  the  city  is  saving  an  enormous  amount  of  money 
by  acquiring  now  the  land  needed  instead  of  waiting  until 
an  almost  certain  increase  in  land  values  has  taken  place. 
It  is  very  clear  that  it  is  false  economy  for  a  city  to  be  too 
niggardly  in  acquiring  sites  for  public  buildings.  If  a 
city  refuses  to  look  to  the  future  when  buying  land  for 
this  purpose,  it  may  find  itself  obliged  to  pay  an  enor- 
mous price  for  the  grouping  of  buildings  which  is  so 
much  desired. 

A  third  mistake  which  our  cities  commonly  make,  in 
the  locating  of  public  buildings  and  places,  is  quite  similar 
to  the  one  just  discussed.  This  is  the  failure  to  secure 
land  enough  to  allow  the  enlargements  which  become 
necessary  with  the  city's  growth.  Schoolhouses  and  li- 
braries and  playgrounds  which  are  large  enough  to-day 
will,  in  most  cases,  be  too  small  ten  years  from  now ;  and 
the  most  effective  way  to  meet  the  need  will  probably  be 
to  expand  the  present  quarters.  Here  again,  lack  of 
foresight  frequently  prevents  the  city  authorities  from 
realizing  that  the  needs  of  to-morrow  will  be  greater  than 

6  Memorandum  submitted  to  the  Committee  on  City  Plan  of  the 
Board  of  Estimate,  with  Relation  to  Proposed  Modifications  in  the 
Site  of  the  New  York  County  Court  House  and  the  Layout  of  Sur- 
rounding Streets  and  Parkways,  pp.  1-2. 

«  Jbid,  p.  5. 


PROTECTION  OF  IMPROVEMENTS        79 

the  needs  of  to-day.  As  a  rule  a  site  is  secured  only 
large  enough  for  imttiediate  needs,  on  the  assumption 
that  when  an  enlargement  is  necessary,  then  there  will 
be  time  enough  to  think  about  securing  what  additional 
land  is  necessary.  Perhaps  this  mistake  is  most  likely 
to  be  made  in  large  and  rapidly  growing  cities,  but  where 
it  is  made  it  places  a  heavy  burden  upon  the  city.  The 
report  of  the  New  York  City  Commission  on  Congestion 
of  Population,  already  mentioned,  shows  the  experience 
of  the  city  of  New  York  in  acquiring  sites  for  its  school 
buildings.  "  The  history  of  the  acquisition  of  land  by 
New  York  City  shows,  unfortunately,  a  '  piecemeal ' 
purchase  of  land  entirely  out  of  proportion  to  the  in- 
creasing needs  of  the  community.  Of  513  school  sites 
in  New  York  City,  in  229  cases,  nearly  one-half,  less  than 
the  entire  site  was  purchased  at  one  time.  In  17  cases 
the  total  amount  of  land  required  was  secured  at  five  dif- 
ferent times,  extending  over  a  series  of  years."  ^ 

In  all  of  these  cases  the  city  pays  the  penalty  for  its 
shortsightedness  by  being  obliged  to  buy  land  it  needs  at 
the  constantly  rising  congestion  values.^ 

It  is  not  much  to  be  wondered  at  that  our  cities  have 
not  in  the  past  more  frequently  avoided  the  costly  mis- 
takes which  have  just  been  described.  It  is  futile  to  rail 
against  the  generations  before  the  Civil  War  for  not 
foreseeing  the  needs  of  the  cities  of  to-day.  Hindsight 
is  much  easier  to  exercise  than  foresight,  and  it  is  quite 
unlikely  that  the  most  vigorous  imaginations  of  our  great 
grandfathers  could  have  pictured,  with  any  accuracy,  the 
modern  twentieth  century  city.     Men  with  the  spirit  of 

''Report  of  New  York  City  Commission  on  the  Congestion  of 
Population,  191 1,  p.  49. 

8  How  much  the  city  has  lost  through  its  inability  to  foresee  the 
needs  of  the  future  or  its  unwillingness  to  provide  for  them  is  indi- 
cated in  the  following  two  tables  which  show  the  prices  at  which 


8o  EXCESS  CONDEMNATION 

pioneers,  who  carried  civilization  to  a  new  country,  can 
be  forgiven  if  their  work  in  city  building  lacks  the  fineness 
and  artistic  vision  of  the  modern  city  planning  experts. 
But  while  it  is  possible  to  excuse  the  shortsightedness 
of  men  who  worked  without  a  model  and  without  expe- 
rience and  made  the  mistakes  of  honest  ignorance,  this  can 
not  be  done  for  modern  city  authorities,  who  at  great 
cost  correct  the  mistakes  of  their  grandfathers  with  one 
hand,  and  with  the  other  duplicate  those  mistakes  to 
harass  the  next  generation.  Now  it  is  not  to  be  ex- 
pected that  the  average  American  city  can  anticipate  all 
its  needs  for  all  time  to  come.  To  declare  with  positive- 
ness  that  on  a  particular  spot  in  the  now  undeveloped 
suburbs  of  a  city  a  schoolhouse  should  stand  eighty  years 
from  now,  is  to  the  mind  of  most  practical  minded  citi- 
zens an  attempt,  not  at  city  planning,  but  at  divination. 
There  are,  however,  many  needs  of  the  city  which  can  be 
definitely  foreseen,  and  certainly  it  is  merely  the  com- 
monest kind  of  good  business  policy  for  the  city  to  make 
provision  for  those  needs  as  early  and  as  definitely  as  it 
can.  It  may  seem  foolish  for  a  man  with  a  blueprint 
in  his  hand  to  stand  in  the  middle  of  a  farm  outside  the 
city  limits  and  announce  that  a  library  or  fire  station 

the  city  secured,  at  various  times,  the  land  for  two  schoolhouses, 
one  in  Manhattan  and  one  in  Brooklyn : 

School  14,  33  Greenwich  Avenue  (Manhattan) 

1849 $  0.79  per  square  foot 

1851 84  per  square  foot 

1890 8.40  per  square  foot 

1897 9.56  per  square  foot 

1905 1337  per  square  foot 

School  34,  Morman,  Eckford,  Oakland  Streets  (Brookl3rn) 

1867 $0.23  per  square  foot 

1904 3.16  per  square  foot 

1906 7.16  per  square  foot 

Ibid,  p.  56. 


PROTECTION  OF  IMPROVEMENTS        8i 

should  be  located  at  precisely  that  point  at  some  time  in 
the  dim  future.  It  is  not  absurd,  however,  for  a  city  to 
realize  that  a  community  cannot  do  without  fire  stations 
and  schoolhouses,  and,  when  it  plots  a  suburban  tract,  to 
secure  enough  land  at  a  low  price  to  forestall  such  needs. 
Nor  is  it  unreasonable  for  a  city  to  assume  that  it  may 
ultimately  need  to  enlarge  some  of  its  public  buildings, 
and  with  that  end  in  view  to  secure,  while  prices  are  low, 
sites  large  enough  for  that  purpose.  It  is,  in  short,  a 
safe  and  sane  policy  for  any  city,  in  providing  for  public 
buildings  and  public  places,  to  plan  ahead  as  definitely  as 
is  possible  for  those  needs  which  it  is  obviously  reason- 
able to  suppose  will  arise. 

There  are  many  who  feel  that,  if  the  city  were  to  apply 
to  this  problem  of  securing  appropriate  sites  for  public 
buildings  and  places  the  principle  of  excess  condem- 
nation, it  could  then  pursue  a  farsighted  and  businesslike 
policy.  It  could  estimate  its  present  needs  and  its  future 
needs.  It  would  acquire  ample  land  for  both.  It  would 
not  be  scrupulous  to  confine  itself  to  the  narrowest  meas- 
ure of  those  needs.  The  conviction  that  at  some  time  the 
public  will  need  land  in  a  particular  district  will  justify 
the  condemning  of  a  generous  plot  —  even  more  than  it 
is  supposed  the  city  can  use.  The  city  will  hold  these 
lands  until  the  development  of  the  neighborhood  necessi- 
tates their  use.  Public  buildings  will  be  erected  or  open 
spaces  reserved.  There  will  be  room  to  group  buildings 
together  harmoniously  and  conveniently  in  an  appropriate 
setting.  Should  it  become  necessary  to  enlarge  the  build- 
ings, there  will  be  room  enough  for  such  expansion. 
When  the  city  has  met  all  its  needs,  the  land  which  it 
does  not  care  to  use  for  a  public  purpose  can  be  sold  or 
leased.  It  would  usually  be  sold  at  a  handsome  profit, 
and  it  ought  always  to  be  sold  under  such  restrictions  as 


82  EXCESS  CONDEMNATION 

will  protect  the  public  buildings  or  open  spaces  from  dis- 
figurement or  injury.  Such,  it  is  urged,  is  the  way  in 
which  excess  condemnation  would  meet  the  problem  of 
public  building  sites.  The  principle  is  exceedingly  simple. 
It  is  merely  the  policy  of  buying  more  than  you  can  be 
sure  you  will  definitely  need,  in  order  to  be  certain  that 
you  have  enough.  The  city  knows  that  it  can  use  five 
acres  of  land  in  a  certain  district,  it  feels  rather  sure  that 
it  might  want  to  use  six  or  seven  acres,  and  so  it  pur- 
chases ten  acres ;  knowing  that  it  is  not  acquiring  a  perish- 
able commodity  which  will  spoil  on  its  hands,  but  property 
which  it  will  usually  be  able  to  sell  later,  if  it  cares  to,  at  a 
higher  price  than  it  paid  for  it. 

The  question  arises  at  once,  whether  this  method  of 
securing  public  building  sites  is  really  excess  condemna- 
tion in  the  sense  in  which  that  term  is  usually  defined. 

There  is  certainly  no  question  but  what  this  scheme  in- 
volves a  rather  liberal  expansion  of  the  ordinary  policy 
of  exercising  the  right  of  eminent  domain.  The  city 
takes,  under  it,  more  land  than  it  needs  at  the  time.  It 
takes  land  which  it  may  never  need,  merely  because  it 
wishes  to  play  safe.  It  may  not  even  be  sure  to  just 
what  use  the  land  will  be  put  if  it  finally  declines  to  use 
it.  When  we  speak  of  taking  private  property  for  a 
public  purpose,  we  assume  that  that  property  is  needed 
for  a  definite  and  immediate  use  by  the  city.  The  use 
here,  however,  is  neither  definite  nor  immediate,  and 
there  is  even  considerable  uncertainty  whether  such  a  use 
will  ever  exist.  There  are  some  instances  in  which 
American  cities  have  been  allowed  to  condemn  a  par- 
ticular parcel  of  land  "  for  building  or  park  or  any  public 
purpose,"  °  but  no  general  power  of  this  character  is 

» Massachusetts  Laws,  1912,  Ch.  475 ;  New  York  Laws,  1914, 
Ch.  530. 


PROTECTION  OF  IMPROVEMENTS         83 

ordinarily  given  to  municipalities  in  this  country.  Nettle- 
ford  cites  an  old  English  statute  dating  back  to  Edward 
III,  on  the  other  hand,  which  forbids  an  English  public 
authority  from  buying  or  holding  land  unless  it  specifies 
exactly  the  purpose  for  which  it  is  to  be  used.^°  In  law, 
as  well  as  in-  theory,  condemnation,  for  the  general  and 
indefinite  purpose  here  proposed,  is  a  departure  from  the 
ordinary  exercise  of  the  right  of  eminent  domain. 

On  the  other  hand,  this  policy  differs  from  excess 
condemnation  as  already  defined,  because  it  does  not 
contemplate  the  acquisition,  for  a  purpose  supplementary 
to  that  of  creating  a  public  improvement,  of  land  which 
the  city  knows  definitely  that  it  will  dispose  of  later.^^ 
It  is  tolerably  certain,  perhaps,  that  it  is  taking  more 
land  than  it  needs,  but  its  needs  are  still  somewhat  vague. 
The  line  between  the  land  which  the  city  will  use  and 
that  which  it  will  not  use  cannot  be  definitely  drawn. 
Such  land  as  the  city  may  finally  resell  is  not  condemned 
for  the  purpose  of  such  resale,  but  rather  because  the 
city  wished  to  provide  amply  for  all  its  needs  for  build- 
ing sites.  When  the  city  thus  condemns  land  for  a 
general  public  purpose,  whatever  land  it  resells  bears  the 
same  relation  to  what  it  actually  uses  that  the  surplus 
which  is  left  after  a  suit  of  clothes  has  been  cut  from  a 
piece  of  cloth  bears  to  the  part  actually  used.  The  city 
knows  it  is  acquiring  more  than  is  actually  needed,  but 
just  how  much  and  just  which  parts  are  to  be  left  over  it 
cannot  tell.  In  excess  condemnation,  however,  the  city 
acquires  pieces  of  land  which  it  knows  it  cannot  use,  and 
which  it  knows  it  will  dispose  of  later  on.  The  differ- 
ence is  one  of  intention,  but  that  difference  is  sufficient 
to  distinguish  the  two  policies.     This  peculiar  problem  of 

10  Practical  Town  Planning,  p.  164. 
"  Supra,  p.  3ff. 


84  EXCESS  CONDEMNATION 

securing  appropriate  public  building  sites  does  not  itself 
call  for  the  use  of  real  excess  condemnation. 

It  is  unnecessary  to  enter  at  great  length  into  the  merits 
and  limitations  of  this  policy  of  condemning  land  for 
public  purposes  of  an  indeterminate  character.  It  would 
undoubtedly  enable  the  city  to  overcome '  most  of  the 
difficulties  with  which  it  must  now  deal  in  the  securing 
of  adequate  sites  for  public  buildings  and  places.  The 
city  could  plan  more  carefully  for  its  future  needs.  It 
would  usually  enable  the  city  to  secure  appropriate  sites 
at  more  reasonable  prices.  Whatever  land  was  left  over 
could  be  resold  and  perhaps  some  profit  would  be  made. 

If  the  city  did  not  need  the  land  for  immediate  build- 
ing purposes,  it  might  perhaps  use  it  temporarily  for  pub- 
lic parks  or  playgrounds.  If  it  could  not  afford  to  hold 
the  land  for  a  long  period  without  some  money  return  on 
it,  some  plan  could  probably  be  devised  by  which  it  could 
be  rented  on  short  term  leases,  which  would  bring  in  a 
regular  income  and  still  allow  the  city  to  take  possession 
when  it  needed  to  do  so.  If  this  policy  were  pursued, 
the  city  could  perhaps  in  many  cases  afford  to  acquire, 
against  a  future  need,  land  already  built  upon ;  and  leave 
the  present  occupant  in  undisturbed  possession  for  a  con- 
siderable period  of  time.  The  income  thus  received 
might  reasonably  be  expected  to  pay  the  interest  charges 
on  the  purchase  price  and  reimburse  the  city  for  the  loss 
of  taxes  on  the  land. 

There  are,  of  course,  a  number  of  practical  difficulties 
connected  with  such  a  program  as  this.  To  the  minds 
of  many  citizens  it  would  be  exceedingly  unwise  to  con- 
fer upon  our  city  authorities  the  power  to  condemn  pri- 
vate property  indiscriminately  for  purposes  which  need 
not  be  definitely  stated  at  the  time.  Such  a  power  would 
need  to  be  carefully  checked  to  prevent  its  abuse  through 


PROTECTION  OF  IMPROVEMENTS        85 

inefficiency  or  favoritism.  Most  of  the  objections  to  the 
policy  arise  from  a  fear  of  its  faulty  administration, 
rather  than  from  a  serious  protest  against  the  inherent 
character  of  the  system  itself.  It  seems  on  the  whole  that 
a  cautious  use  of  this  scheme  would  mean  much  to  Amer- 
ican cities  in  the  way  of  good  city  planning  and  economy. 

We  turn  now  to  the  main  problem  of  using  excess  con- 
demnation as  a  means  of  protecting  public  improvements. 
To  achieve  this  end,  the  city  condemns  more  land  than  it 
wishes  to  use  for  an  improvement,  and  resells  or  leases 
the  surplus  with  such  restriction  as  to  its  future  use  as 
will  adequately  protect  tha  usefulness  and  appearance  of 
that  improvement.  It  is,  of  course,  unnecessary  that  this 
should  be  the  only  motive  for  the  use  of  excess  con- 
demnation in  a  given  case.  There  is  no  reason  why  the 
city  should  not  condemn  land  in  excess  for  the  combined 
purpose  of  replotting  remnants  of  land,  reselling  the 
surplus  at  a  profit  and  affording  the  improvement  ade- 
quate protection.  In  this  chapter,  however,  the  policy 
will  be  discussed  as  a  protective  measure. 

There  is  probably  no  city  in  the  United  States  in  which 
hideous  examples  do  not  exist  of  the  need  of  some  means 
of  protecting  a  public  improvement  from  the  inappro- 
priate or  injurious  use  of  the  surrounding  property. 
Sooner  or  later  the  city  must  discover  some  way  of  exer- 
cising this  kind  of  control.  It  is  possible  for  a  park  or 
boulevard  to  be  well-nigh  ruined  by  the  uses  to  which  the 
abutting  owners  put  their  property.  If  the  city  of  New 
York  had  not  taken  for  park  purposes  most  of  the  land 
lying  between  Riverside  Drive  and  the  Hudson,  there  is 
no  question  whatever  but  that  both  sides  of  that  famous 
pleasure  drive  would  have  been  lined  solidly  with  tall 
apartment  houses,  and  instead  of  looking  out  on  the  river 
and  Palisades,  the  passerby  would  have  found  himself  in 


86  EXCESS  CONDEMNATION 

a  cheerless  canyon  between  rows  of  ten-story  fronts.  By 
creating  Riverside  Park,  the  city  was  able  to  preserve 
the  light,  air  and  view  on  one  side  of  Riverside  Drive. 
There  were  other  abuses  however  which  the  city  was  not 
able  to  prevent.  It  was  not  able  to  prevent  the  other 
side  of  the  drive  from  being  marred,  at  intervals,  by 
billboards  and  other  eyesores,  which  destroy  to  a  con- 
siderable degree  the  beauty  of  the  improvement.  It  is 
unnecessary  to  multiply  evidence  of  the  fact  that  private 
interest  and  civic  pride  are  not  sufficient  to  prevent  the 
attractiveness  and  usefulness  of  a  splendid  public  im- 
provement from  being  seriously  impaired  by  the  inappro- 
priate uses  to  which  the  adjoining  property  is  put. 

Without  some  control  over  the  surrounding  property, 
furthermore,  the  city  cannot  be  sure  of  accomplishing 
effectively  the  purpose  for  which  it  has  constructed  the 
improvement.  It  may  wish  to  open  a  business  thorough- 
fare to  meet  the  needs  of  a  growing  city  and  find  itself 
quite  unable  to  forbid  the  erection  of  dwelling  houses  or 
low-class  buildings  along  its  length.  It  may  desire  to 
open  a  residence  street  for  workmen  in  a  factory  district, 
but  still  be  powerless  to  prevent  the  encroachment  of 
mercantile  and  industrial  interests.  The  hands  of  the 
city  are  practically  tied.  It  may  have  a  wise  and  fore- 
seeing plan  for  its  own  development  carefully  worked 
out,  and  still  be  compelled  to  look  helplessly  on  and  see 
that  plan  thwarted  or  delayed  by  the  selfishness  of  pri- 
vate interests  which  it  is  unable  to  control  or  direct. 

The  increasing  prevalence  of  such  regrettable  situations 
as  those  which  have  been  described  is  being  recognized 
and  deplored  by  the  growing  body  of  citizens  who  are 
wishing  and  working  for  well  planned  and  beautiful  cities. 
While  there  is  a  constantly  widening  conviction  that  the 
city's  power  to  protect  its  public  works  from  disfigure- 


PROTECTION  OF  IMPROVEMENTS        87 

ment  and  injury  should  not  stop  at  street  or  park  lines, 
but  should  reach  to  some  extent  the  adjoining  private 
property,  there  is,  however,  no  substantial  agreement 
as  to  just  how  the  city  should  exercise  this  control. 
Those  who  urge  excess  condemnation  as  the  only  ade- 
quate solution  of  the  problem  find  themselves,  therefore, 
under  the  necessity  of  defending  their  plan  against  the 
competing  claims  of  at  least  two  rival  schemes. 

The  first,  and  in  some  ways  the  simplest  plan  for  the 
public  control  of  the  property  surrounding  an  improve- 
ment, is  by  the  exercise  of  the  police  power,  the  general 
power  of  the  state  or  city  to  protect  the  health,  safety 
and  convenience  of  its  citizens.  The  police  power  is 
based  upon  the  law  of  public  necessity  —  the  paramount 
claims  of  the  community  over  those  of  private  indi- 
viduals. It  is  an  elastic  power  —  ever  broadening  in 
scope,  ever  deepening  in  intensity.  Control  for  which 
there  is  doubtful  public  necessity  today  may  seem  im- 
perative to-morrow;  just  as  the  city  is  at  present  exer- 
cising without  protest  many  types  of  control  over  indi- 
vidual rights  which  would  have  been  branded  as  tyran- 
nical usurpation  a  generation  or  two  ago.  For  this 
reason  it  should  be  remembered  that  American  cities 
have  probably  never  exhausted  their  resources  under  the 
police  power,  and  that  those  resources  bid  fair  to  in- 
crease steadily  as  time  goes  on."  Professor  Freund, 
the  author  of  a  monumental  treatise  on  the  police  power, 
speaking  at  the  National  City  Planning  Conference,  ex- 
pressed the  belief  that  "  the  police  power,  if  not  now  ade- 
quate, will  sooner  or  later  be  adequate  for  the  prevention 
of  disfigurement  of  improvements."  ^' 

12  Shurtleff,  Carrying  Out  the  City  Plan,  Ch.  V,  p.  138. 
18  Proceedings  of  the  Third  National  Conference  on  City  Plan- 
ning, igii,  p.  244* 

7 


88  EXCESS  CONDEMNATION 

There  are  three  important  ways  in  which  the  police 
power  of  a  city  might  be  used  to  protect  pubUc  improve- 
ments from  disfigurement  and  abuse.  The  first  of  these 
is  the  limitation  of  the  height  of  buildings.  Let  Ameri- 
can cities  pass  a  law  or  an  ordinance,  as  continental 
cities  have  done,  forbidding  the  erection  of  buildings  be- 
yond a  certain  height.  If  buildings  could  go  up  no  higher 
than  the  width  of  the  street,  there  would  always  be  ade- 
quate air  and  light  and  much  improvement  in  the  appear- 
ance of  the  thoroughfare.  In  the  second  place,  let  the 
city  forbid  the  erection  of  any  buildings  closer  than  thirty 
or  forty  feet  from  the  line  of  any  park  or  boulevard. 
This  would  almost  automatically  exclude  business  houses 
of  all  kinds,  and  insure  protection  against  the  objection- 
able crowding  in  of  houses  or  stores.  An  adequate  set- 
ting for  the  improvement  would  be  assured.  In  the  third 
place,  the  city  could  be  divided  into  zones  or  districts 
given  over  exclusively  to  business  and  industry  or  to 
homes.  Thus  residences  could  be  protected  against  the 
encroachment  of  unsightly  or  inappropriate  structures. 
Parks  and  boulevards  could  be  freed  from  billboards  and 
commercial  buildings,  while  business  thoroughfares  would 
be  protected  from  the  invasion  of  the  low-class  dwelling 
house.  It  is  clear  that  by  the  exercise  of  these  three 
types  of  control  the  modern  city  could  do  much  to  protect 
its  improvements  from  injury  and  disfigurement. 

The  first  objection  raised  to  the  use  of  the  police 
power  for  these  purposes  is  that  in  so  far  as  they  attempt 
to  afford  an  esthetic  protection  they  are  under  the  ban 
of  unconstitutionality.  It  is  a  well-established  rule  of 
law,  in  American  states,  that  ugliness  cannot  be  abated 
as  a  nuisance.  In  the  words  of  Professor  Freund,  "  the 
various  forms  of  oflfensiveness  over  which  the  police 
power  is  exercised  do  not  as  yet  include  unsightly  ob- 


PROTECTION  OF  IMPROVEMENTS         89 

jects." "  The  attitude  of  our  courts  on  this  point  is 
well  summed  up  in  the  somewhat  eloquent  words  of  the 
Supreme  Court  of  Illinois : 

The  citizen  has  always  been  supposed  to  be  free  to  determine 
the  style  of  architecture  of  his  house,  the  color  of  paint  he 
puts  thereon,  the  number  and  character  of  trees  he  will  plant, 
the  style  and  quality  of  clothes  that  he  and  his  family  will 
wear,  and  it  has  never  been  thought  that  the  legislature 
could  invade  private  rights  so  far  as  to  prescribe  the  course 
to  be  pursued  in  this  and  other  like  matters;  although  the 
highly  cultured  may  find,  on  every  street  of  every  town  and 
city,  many  things  that  are  not  only  open  to  criticism  but 
shocking  to  the  esthetic  taste.  The  courts  of  this  country 
have,  with  great  unanimity,  held  that  the  police  power  cannot 
interfere  with  private  rights  for  purely  esthetic  purposes.^* 

Without  entering  into  any  extended  discussion  of  the 
constitutional  problem  here  raised,  it  may  be  suggested 
that  there  are  three  considerations  which  tend  somewhat 
to  break  the  force  of  this  constitutional  objection.  The 
first  is  that  the  three  ways  in  which  it  is  proposed  to  use 
the  police  power  for  protecting  public  improvements  cer- 
tainly do  not  aim  at  esthetic  protection  exclusively  and 
probably  not  even  primarily.  In  the  second  place,  there 
is  reason  to  believe  that  the  view  of  the  courts  may  gradu- 
ally be  liberalized  on  this  point,  to  permit  the  control 
through  the  police  power  of  the  grosser  forms  of  ugli- 
ness.^®   And  lastly,  the  barrier  of  unconstitutionality  is 

"^^  Police  Power,  p.  162. 

^^  The  Haller  Sign  Works  vs.  Physical  Culture  Training  School, 
249  111.,  436  (191 1 ). 

1^  This  is  certainly  implied  in  the  statement  of  Professor  Freund, 
"  It  is  conceded  that  the  police  power  is  adequate  to  restrain  of- 
fensive noises  and  odors.  A  similar  protection  to  the  eye,  it  is 
conceived,  would  not  establish  a  new  principle,  but  carry  a  recog- 
nized principle  to  further  applications,"    (?/>.  cit.,  p.  166, 


90  EXCESS  CONDEMNATION 

never  permanently  impassable,  since  constitutional 
amendments  can  always  break  down  those  barriers. 

A  much  more  serious  objection  to  the  use  of  the  police 
power  for  these  purposes  lies  in  the  fact  that  it  does  not 
adequately  meet  the  whole  situation.  Without  discount- 
ing its  effectiveness  and  value,  as  far  as  it  goes,  it  is  fair 
to  say  that  the  results  it  can  produce  are,  at  best,  negative 
and  not  positive.  It  may  prevent  the  erection  of  struc- 
tures which  are  positively  objectionable,  but  is  unable  to 
exercise  any  direct  and  constructive  power  to  compel  the 
property  adjoining  an  improvement  to  be  used  for  the 
purposes  which  are  most  appropriate  and  beneficial.  In 
a  majority  of  cases,  the  negative  power  which  the  city 
might  thus  exercise  through  its  police  power  would  per- 
haps be  adequate  for  the  city's  needs.  There  would  be 
many  instances,  however,  in  which  these  negative  meas- 
ures would  not  afford  an  adequate  degree  of  protection. 

The  city  never  pays  damages  for  any  interference  with 
private  rights  resulting  from  an  exercise  of  the  police 
power.  The  owners  of  the  property  abutting  on  a  park 
or  pleasure  drive  would  be  subjected  to  the  types  of  con- 
trol just  mentioned  as  to  height  of  buildings  or  frontage 
lines,  without  receiving  any  compensation  for  these 
limitations  upon  the  use  of  their  property.  This  point 
in  itself  has  called  out  serious  protest  against  any  thor- 
oughgoing use  of  the  police  power  as  a  city  planning  in- 
strument, and  has  led  to  the  proposal  of  another  method 
of  accomplishing  the  same  end  which  is  less  subversive 
of  private  property  rights.  This  is  the  plan  of  taking, 
by  right  of  eminent  domain,  easements  in  the  land  ad- 
jacent to  a  public  improvement.  In  other  words,  the  city 
would  condemn  and  pay  for  the  right  to  impose  upon  the 
neighboring  owners  such  restrictions  as  under  the  police 
power  it  would  impose  without  the  payment  of  compensa- 


PROTECTION  OF  IMPROVEMENTS        91 

tion,  and  even  those  which  were  more  severe.  An  ease- 
ment is  merely  a  right  or  privilege  affecting  the  use  of  a 
piece  of  land  either  giving  the  right  of  use  to  another  or 
limiting  the  owner's  right  to  use  in  a  certain  way.  The 
city  of  Boston,  for  instance,  took  by  eminent  domain  the 
right  to  limit  the  height  of  the  buildings  on  Copley  Square 
to  ninety  feet.  The  owners  received  a  sum  of  money 
and  gave  up  in  return  the  right  to  build  skyscrapers  on 
their  land.^^  A  recent  statute  confers  upon  the  park 
commissioners  of  the  larger  cities  in  Indiana  the  right  to 
condemn  easements  of  a  slightly  different  character. 
This  law  provides  for  the  establishment  of  a  "  line  de- 
termining the  distance  at  which  all  structures  are  to  be 
erected  upon  any  premises  fronting  upon  any  park,  park- 
way, or  boulevard "  and  allows  the  cities  to  "  acquire 
by  condemnation  the  right  to  prevent  the  erection  of,  and 
to  require  the  removal  of,  all  structures  outside  such 
lines."  ^^  There  are  one  or  two  other  states  in  which 
such  laws  have  been  passed.  It  is  quite  possible  that  the 
city  could  condemn  an  easement  in  the  property  abutting 
on  an  improvement  which  would  require  that  it  be  used 
only  for  residence  purposes  or  for  business  purposes.  In 
fact,  however,  the  attempts  to  use  this  method  of  con- 
trolling private  property  have  been  so  few  in  number  and 
so  limited  in  scope  that  it  is  rather  hard  to  determine 
to  just  what  lengths  the  policy  could  be  pushed  if  the  city 
were  intent  upon  making  it  a  really  effective  means  of 
protecting  public  improvements.  It  is  probably  fair  to 
say  that  there  are  undiscovered  possibilities  in  such  a 
method  of  procedure.  It  is  urged  by  many  that  the  con- 
demnation of  easements  can  do  all  that  excess  condemna- 

i^The  constitutionality'of  this  proceeding  was  upheld  in  Attor- 
ney-General vs.  Williams,  174  Mass.,  476  (1899). 
"Laws  of  191 1,  Ch.  231. 


92  EXCESS  CONDEMNATION 

tion  can  do  in  the  way  of  preserving  the  beauty  and  use- 
fulness of  public  improvements  and  can  do  it  more 
cheaply  and  simply. 

The  advantages  claimed  for  this  scheme  are  numerous 
and  convincing.  To  begin  with,  it  presents  less  serious 
legal  difficulties  than  does  excess  condemnation,  provided 
the  city  is  scrupulous  not  to  take  by  eminent  domain  any- 
thing which  it  does  not  directly  and  definitely  use  for 
a  public  purpose.  The  constitutional  right  of  the  city 
to  condemn  easements  would  undoubtedly  be  contested, 
but  should  this  policy  be  held  invalid,  then  there  would 
seem  to  be  little  hope  of  sustaining  the  more  radical  policy 
of  excess  condemnation. 

A  second  advantage  claimed  for  the  policy  of  con- 
demning easements  is  that  it  involves  a  less  drastic  inter- 
ference with  individual  rights  than  does  excess  con- 
demnation. It  takes  away  no  man's  property  in  toto.  It 
merely  limits  the  use  to  which  he  may  put  that  property. 
He  retains  title  to  his  property,  and  he  is  paid  for  the 
privilege  of  the  unrestricted  use  of  it  which  he  gives  up. 
But  under  a  policy  of  excess  condemnation  there  may  be 
no  assurance  that  the  owner  will  be  allowed  to  keep  his 
property  even  if  he  is  quite  willing  to  subject  himself  to 
the  restrictions  the  city  imposes  upon  its  use.  It  might  be 
taken  by  eminent  domain  and  finally  resold  to  some  one 
else,  possibly  to  his  competitor.  This  is  a  matter  of  no 
small  importance,  and  if  the  two  policies  are  equally  ef- 
fective in  accomplishing  the  purpose  for  which  the  city 
employs  them,  the  taking  of  the  easement  alone  would 
be  preferred  as  a  less  serious  invasion  of  private  property 
rights. 

In  the  third  place,  the  condemnation  of  easements  is 
believed  by  many  to  have  definite  financial  advantages 
over   excess   condemnation.     It   is   unnecessary   at   this 


PROTECTION  OF  IMPROVEMENTS         93 

point  to  anticipate  the  rather  detailed  study  of  the  finan- 
cial aspects  of  excess  condemnation  which  will  be  made 
in  later  chapters.^®  It  is  urged,  however,  that  the  city 
would  need  to  pay  far  less  money  for  an  easement  in  an 
estate  than  for  title  to  the  estate  itself,  and  this  would 
make  a  striking  difference  in  the  initial  cost  of  the  under- 
taking. Many  improvements  might  be  possible  at  this 
lesser  cost  which  would  be  out  of  the  question  were  the 
city  obliged  to  condemn  large  tracts  of  land  in  excess  of 
actual  needs.  It  is  argued,  furthermore,  that  the  con- 
demnation of  an  easement  involves  no  financial  risk  to 
the  city.  The  city  has  not  invested  in  any  property  which 
it  must  resell  advantageously  in  order  to  avoid  serious 
loss.  It  has  taken  what  it  needs,  paid  for  it,  and  has 
nothing  left  on  its  hands  to  be  disposed  of.  The  im- 
provement which  it  has  undertaken  may  be  costly,  but 
all  that  cost  can  be  carefully  estimated  in  advance  and  the 
whole  project  be  quite  free  from  any  speculative  risk. 
And  finally,  the  mere  fact  that  the  city  in  condemning 
an  easement  has  taken  nothing  which  it  will  later  sell 
at  a  profit,  does  not  in  the  least  preclude  its  adopting 
any  one  of  several  efTective  plans  of  recouping  the  cost 
of  the  improvement.  There  is  no  reason  why  a  system 
of  special  assessments  or  increment  taxes  should  not  be 
quite  as  productive  under  this  system  as  under  any  other. 
The  city,  in  this  case,  would  protect  its  public  improve- 
ments by  one  scheme,  and  recover  part  of  the  cost  by  an- 
other. There  is  much  cogency  in  these  arguments,  and 
those  who  are  disposed  to  favor  the  condemnation  of 
easements  make  out  a  strong  case  to  show  that  it  is  a 
simple,  safe  and  economical  policy. 

The  primary  criticism  of  the  plan  of  condemning  ease- 
ments goes  to  the  heart  of  the  matter  by  denying  that  it 

"  Infra,  Chs.  IV,  V. 


94  EXCESS  CONDEMNATION 

can  do  effectively  the  thing  for  which  it  is  designed.  It 
may  be  simple,  safe  and  economical,  but  it  does  not  and 
cannot  produce  results  which  are  thoroughgoing  and 
satisfactory.  It  is  not  an  adequate  and  efficient  method 
of  protecting  the  beauty  and  usefulness  of  a  public  im- 
provement. 

In  the  first  place,  such  a  scheme  is  not  designed  ade- 
quately to  protect  a  public  improvement  in  the  built  up 
part  of  a  city.  It  is  one  thing  to  condemn  an  easement 
in  undeveloped  land  in  a  suburban  district  for  the  pur- 
pose of  preventing  the  erection  of  buildings  which  are 
too  high  or  too  near  a  street.  It  is  a  very  different  thing 
to  alter  the  character  and  location  of  buildings  already 
standing,  in  order  to  give  the  proper  surroundings  to  an 
improvement  in  the  heart  of  the  city.  To  condemn  an 
easement  in  a  row  of  dwelling  house  or  store  lots  might 
result  in  the  mutilation  of  the  buildings  in  such  a  way 
as  to  conform  to  the  requirements,  but  with  a  most  de- 
plorable effect  on  the  appearance  of  the  street.  And 
yet  these  improvements  in  the  heart  of  the  city  are  fre- 
quently the  ones  which  are  most  in  need  of  adequate  pro- 
tection. The  taking  of  easements  may  be  a  good  way  of 
preventing  the  property  near  an  improvement  being  put 
to  certain  obnoxious  uses ;  it  is  hardly  an  effective  method 
of  changing  the  character  of  property  which  is  already 
being  used  in  such  a  way  as  to  destroy  the  beauty  and 
usefulness  of  a  public  improvement. 

This  suggest?  the  second  important  limitation  upon  the 
plan  of  condemning  easements.  Its  results  are  at  best 
negative  and  not  positive.  By  means  of  it  a  city  may  be 
able  to  prevent  the  adjacent  property  from  being  put  to 
some  of  the  more  offensive  uses,  but  it  cannot  compel  a 
positive  compliance  on  the  part  of  the  owners  of  such 
property,  with  a  constructive  plan.     It  may  tell  the  prop- 


PROTECTION  OF  IMPROVEMENTS         95 

erty  owner  that  there  are  certain  things  he  may  not  do 
with  his  property,  but  it  cannot  tell  him  what  he  must  do 
with  it.  It  is  exceedingly  doubtful,  for  example,  if  the 
city,  after  it  had  opened  a  new  business  thoroughfare, 
could  condemn  such  an  easement  over  the  abutting  prop- 
erty as  would  compel  the  owners  to  build  business  blocks 
where  their  houses  now  stand.  The  city  might  specify 
kinds  of  buildings  which  might  not  be  erected,  but  it 
would  be  unable  to  require  the  owners  to  build  just  the 
sort  of  buildings  which  are  needed  if  the  city's  purpose 
in  making  the  improvements  is  to  be  effected.  And  yet 
it  is  just  that  kind  of  control  which  the  city  must  some- 
times exercise  if  it  is  to  carry  out  effectively  a  wise 
and  thoroughgoing  plan  for  its  own  development.  The 
condemning  of  easements  is  a  preventive,  not  a  con- 
structive measure. 

Even  if  it  were  possible  for  a  city  to  condemn  an  ease- 
ment which  would  permit  it  to  compel  a  property  owner 
radically  to  alter  the  character  of  the  house  or  business 
block  on  his  land,  it  would  be  an  exceedingly  costly  pro- 
ceeding. The  city  would  be  obliged  to  pay  for  an  ease- 
ment of  that  kind  an  amount  nearly  as  great,  perhaps 
even  greater  in  fact,  than  the  cost  of  condemning  the 
land  itself.  This  heavy  cost  would  be  borne  by  the  city, 
and  it  is  hard  to  see  that,  when  applied  to  a  project  of 
this  sort,  the  condemnation  of  easements  possesses  any 
special  financial  advantages  over  excess  condemnation 
of  land. 

On  the  whole,  it  may  be  seriously  questioned  whether 
the  exercise  of  the  police  power  and  the  condemnation 
of  easements  afford  thoroughly  adequate  means  of  se- 
curing to  a  public  improvement,  under  all  circumstances, 
the  appropriate  surrounding  which  it  ought  to  have. 
There  is  no  reason  why  they  should  not  form  part  of  a 


96  EXCESS  CONDEMNATION 

city  planning  policy,  and  be  utilized  whenever  they  would 
be  effective  and  satisfactory.  Sooner  or  later,  however, 
there  is  reason  to  believe,  the  city  would  find  itself  in 
need  of  the  additional  control  afforded  by  the  policy  of 
excess  condemnation  of  land. 

The  essential  features  of  excess  condemnation  as  a 
means  of  protecting  the  beauty  and  usefulness  of  a  public 
improvement  have  already  been  suggested.  The  city 
condemns,  in  addition  to  what  is  actually  needed  for  the 
street  or  park,  as  much  land  as  it  will  be  necessary  to 
control  in  order  to  afford  the  protection  which  it  desires. 
This  may  mean  merely  a  row  of  building  sites  immedi- 
ately abutting  on  the  improvement,  or  it  may  mean  the 
taking  of  land  to  a  depth  of  from  200  to  300  feet.  This 
surplus  land  the  city  takes  in  fee  simple.  It  takes  it  be- 
cause it  wishes  to  resell  it.  It  wishes  it  to  resell  it  be- 
cause, when  it  does  so,  it  can  put  into  the  deeds  of  sale 
such  restrictions  as  to  the  future  use  of  the  land  as  will 
secure  to  the  park  or  highway  the  appropriate  setting 
which  is  needed.  The  city  holds  this  land  in  the  same 
way  in  which  a  private  citizen  holds  land,  and  there  is 
no  reason  why  any  covenant  known  to  the  transfer  of 
property  from  one  citizen  to  another  could  not  be  made 
binding  between  the  city  and  those  to  whom  it  sells  that 
land.  It  might  stipulate  that  the  land  adjoining  a  park 
or  boulevard  should  be  used  only  for  residences  of  a 
certain  price,  that  they  should  be  placed  a  reasonable  dis- 
tance from  the  street  and  from  each  other,  that  they  be 
built  of  brick  or  stone  and  should  not  in  any  case  be  higher 
than  two-thirds  or  three-fourths  the  width  of  the  street 
in  front  of  them.  It  could  in  like  manner  provide  that 
the  lots  fronting  a  newly  opened  thoroughfare  designed 
for  business  purposes  should  have  erected  on  them  only 
buildings  of  a  certain  quality,  size  and  height.     The  city 


PROTECTION  OF  IMPROVEMENTS         97 

is  not  obliged  to  sell  these  lots.  When  it  does  sell  it  can 
sell  upon  its  own  terms.  In  this  way  the  city  may  di- 
rectly and  adequately  protect  any  public  improvement,  no 
matter  how  unattractive  its  previous  surroundings  have 
been. 

The  earliest  attempt  in  the  United  States  to  confer 
upon  cities  the  power  of  excess  condemnation,  for  the 
purpose  of  protecting  public  improvements,  was  made 
by  the  state  of  Ohio  in  the  well-known  Municipal  Code 
of  1902.  This  statute  provided  that  municipalities 
should  have  special  power  to  "  appropriate,  enter  upon 
and  hold  real  estate  within  their  corporate  limits  "  for  a 
variety  of  purposes.     One  of  these  purposes  was 

for  establishing  esplanades,  boulevards,  parkways,  park 
grounds  and  public  buildings,  and  for  the  purpose  of  reselling 
such  land  with  reservations  in  the  deeds  of  resale  as  to  the 
future  use  of  such  lands  so  as  to  protect  public  buildings  and 
their  environs,  and  to  preserve  the  view,  appearance,  light, 
air  and  usefulness  of  public  grounds  occupied  by  public 
buildings  and  esplanades  and  parkways  leading  thereto.^" 

Some  dozen  or  fifteen  constitutional  amendments  or  laws, 
embodying  substantially  the  same  power,  have  been  en- 
acted or  proposed  in  various  states  since  that  time,^^  and 
although  they  all  follow  the  same  general  lines,  no  two  of 

20  Code  of  1902,  amended  1904  and  1908.  Incorporated  into  Gen- 
eral Code  of  Ohio  1910,  Vol.  I,  p.  787,  No.  3677,  Par.  12. 

21  Maryland  Laws  of  1906,  Ch.  397;  Laws  of  1908,  Ch.  166; 
Model  Charter  of  National  Municipal  League,  1915 ;  New  York 
Laws  of  191 1,  Ch.  776;  New  York  Laws  of  1915.  Ch.  593;  Ohio 
Constitution,  Art  XVIII,  1912;  Oregon  Laws  of  1913,  Ch.  269; 
Pennsylvania  Laws  of  1907,  Np.  315 ;  Proposed  amendment  to 
Constitution  of  Pennsylvania,  Art.  IX,  Sec.  16,  1915;  Proposed 
amendment  to  Constitution  of  California,  Art.  XI,  Sec.  20,  de- 
feated in  19x4  and  1915 ;  Virginia  Laws  of  1906,  Ch.  194 ;  Wiscon- 
sin 1909,  Chs.  162,  165;  191 1,  Ch.  486;  Laws  of  1912,  Art  XI. 
See  infra,  p.  2i8ff. 


98  EXCESS  CONDEMNATION 

them  are  exactly  alike.  There  is  some  difference,  for 
instance,  in  the  kinds  of  improvements  in  connection  with 
which  this  power  can  be  exercised.  Some  states  provide 
for  its  use  in  connection  with  any  public  improvement 
which  the  city  may  undertake.  The  Pennsylvania  law 
limits  its  use  to  projects  for  the  creation  or  improvement 
of  "  parks,  parkways  and  playgrounds  "  while  the  Mary- 
land statute  specifies  "  esplanades,  boulevards,  parkways, 
playgrounds,  public  reservations  around  public  buildings." 
A  special  statute  of  191 1  provided  for  the  application  of 
excess  condemnation  in  connection  with  the  improvement 
of  the  waterfront  facilities  of  the  city  of  New  York  and 
the  creation  of  "  terminals,  ways  or  stations."  In  most 
cases  these  provisions  have  been  enacted  with  some 
specific  improvement  in  view,  but  in  the  more  recent  en- 
actments there  seems  to  be  less  and  less  tendency  to  limit 
the  kind  of  public  improvement  which  the  city  is  author- 
ized to  protect  by  means  of  excess  condemnation. 

In  a  few  instances,  also,  the  city  is  limited  in  respect 
to  the  amount  of  lands  which  it  may  condemn  in  excess  of 
its  actual  needs.  The  Pennsylvania  and  Oregon  statutes 
specify  that  neighboring  private  property  within  two 
hundred  feet  of  the  boundary  lines  of  the  improvement 
may  be  appropriated  by  the  city.  A  proposed  amend- 
ment to  the  New  York  constitution  presented  in  the  con- 
vention of  191 5  provided  that  "the  excess  shall  be  no 
more  than  sufficient  to  form  suitable  building  sites  abut- 
ting on  such  park,  street,  highway  or  public  place." " 
In  some  instances,  however,  no  limitation  of  this  kind  is 
placed  on  the  city,  which  is  thus  left  free  to  condemn  in 
excess  as  much  land  as  is  necessary  in  its  judgment  in 
order  adequately  to  protect  the  improvement. 

22  New  York  Constitutional  Convention,  Proposed  Amendments, 
Vol.  II ;  proposal  512,  June  9,  1915.    Not  adopted  by  Convention. 


PROTECTION  OF  IMPROVEMENTS        99 

The  kind  of  restrictions  which  may  be  imposed  upon 
the  future  use  of  the  land  which  the  city  resells  will,  of 
course,  vary  with  the  character  of  the  improvement  and 
the  purpose  for  which  it  was  constructed.  In  those  cases 
where  excess  condemnation  may  be  utilized  in  connec- 
tion with  any  kind  of  public  improvement,  the  law  will 
usually  provide  that  such  restrictions  may  be  imposed  as 
will  protect  and  further  the  improvement.  Thus  no 
limit  whatever  is  placed  upon  the  discretion  of  the  city 
authorities  in  this  matter.  Where,  on  the  other  hand,  the 
use  of  excess  condemnation  has  been  limited  to  the  pro- 
tection of  certain  kinds  of  improvements,  like  parks, 
parkways  and  boulevards,  there  has  been  an  attempt  to 
map  out  in  general  terms  at  least  the  character  of  the 
restrictions  which  are  to  be  imposed  upon  the  surplus 
land.  The  Pennsylvania  law,  for  instance,  stipulates 
that  cities  may 

resell  such  neighboring  property,  and  with  such  restrictions 
in  the  deeds  of  resale  in  regard  to  the  use  thereof  as  will  fully 
insure  the  protection  of  such  public  parks,  parkways  and  play- 
grounds, their  environs,  the  preservation  of  the  view,  appear- 
ance, light,  air,  health  and  usefulness  thereof. 

The  Virginia  act  of  1906  allowed  the  city  to  resell  the 
surplus  land,  "  making  limitations  as  to  the  uses  thereof, 
which  will  protect  the  beauty,  usefulness,  efficiency  or 
convenience  of  such  parks,  plots  or  property,"  while  the 
New  York  statute  seeking  to  protect  waterfront  and  ter- 
minal facilities  provided  for  the  resale  of  the  land  not 
needed  under  restrictions  which  would  tend  to  promote 
access  to  or  use  of  the  improvement. 

It  will  be  noticed  that  in  none  of  these  cases  are  the 
hands  of  the  city  so  tied  as  to  prevent  the  imposition  on 
the  future  use  of  such  surplus  property  of  any  restric- 


loo  EXCESS  CONDEMNATION 

tions  which  the  city  might  deem  suitable  for  the  accom- 
plishment of  its  purpose.  It  is  quite  probable,  however, 
that  laws  providing  for  the  use  of  excess  condemnation 
as  a  means  of  protecting  public  improvements  will  con- 
tinually grow  broader  and  more  general  in  character,  at 
least  in  respect  to  the  kinds  of  projects  in  connection 
with  which  it  may  be  used  and  the  types  of  protective 
restriction  which  may  be  imposed.^^  This  newer  type  of 
excess  condemnation  provision  is  exemplified  in  the  pro- 
posed amendment  to  the  constitution  of  Pennsylvania 
passed  by  the  legislature  of  1915.  The  fact  that  it  is 
the  newest  as  well  as  the  broadest  provision  on  the  sub- 
ject justifies  its  quotation  in  full. 

The  State,  or  any  municipality  thereof,  acquiring  or  appro- 
priating property  or  rights  over  or  in  property  for  public  use, 
may  in  furtherance  of  its  plans  for  the  acquisition  and  public 
use  of  such  property  or  rights,  and  subject  to  such  restrictions 
as  the  legislature  may  from  time  to  time  impose,  appropriate 
an  excess  of  property  over  that  actually  to  be  occupied  or 
used  for  public  use,  and  may  thereafter  sell  or  lease  such 
excess  and  impose  on  the  property  so  sold  or  leased  any 
restrictions  appropriate  to  preserve  or  enhance  the  benefit 
to  the  public  of  the  property  actually  occupied  or  used.^* 

While  this  proposed  amendment  is  in  itself  exceedingly 
broad,  it  is  to  be  noted,  however,  that  it  expressly  author- 
izes statutory  restrictions. 

23  The  city  will,  of  course,  always  be  under  certain  practical  limi- 
tations as  to  the  kind  of  restrictions  to  which  the  future  of  surplus 
property  may  be  subjected  by  reason  of  the  fact  that  it  wishes  to 
sell  that  surplus.  It  is  shown,  at  a  later  point  in  the  discussion, 
that  the  character  of  these  restrictions  directly  affects  the  market- 
ability of  the  land.    Infra,  p.  207ff. 

2*  Proposed  amendment  to  Article  IX  of  the  Constitution,  Sec. 
16.  Proposed  in  legislative  session  of  1915  and  must  be  passed  by 
^he  next  legislative  assembly  before  being  submitted  tQ  the  people, 


PROTECTION  OF  IMPROVEMENTS       loi 

All  of  the  statutes  and  constitutional  amendments  thus 
far  discussed  seem  to  have  been  drafted  for  the  ex- 
clusive purpose  of  enabling  a  city  to  restrict  the  future 
use  of  property  condemned  in  excess. 

There  is  a  more  numerous  class  of  enactments  authoriz- 
ing excess  condemnation  which  do  not  require  the  imposi- 
tion of  restrictions  upon  the  land  which  the  city  resells, 
but  definitely  permit  the  city  to  sell  such  land  with  or 
without  such  restrictions.  These  provisions  contemplate 
the  use  of  excess  condemnation  as  a  means  of  replotting 
remnants  of  land  and  recouping  the  cost  of  the  improve- 
ment as  well  as  of  protecting  the  improvement,  and  in 
case  these  purposes  could  not  all  be  effectively  accom- 
plished, the  city  is  given  its  choice  as  to  which  one  it  will 
further.  If  the  imposition  of  restrictions  upon  the  use 
of  the  land  resold  would  make  the  undertaking  less  profit- 
able financially,  the  city  need  not  impose  such  restric- 
tions. It  is  given  discretion  to  decide  whether  there 
shall  be  any  restrictions  and  what  kind  they  shall  be  if 
they  are  imposed. 

This  is  also  the  case  in  England.  English  cities  have 
employed  excess  condemnation  for  purposes  of  recoup- 
ment in  special  instances  for  many  years,  apparently 
without  thought  of  furthering  any  social  or  esthetic  pur- 
pose in  that  way.  The  more  recent  parliamentary  enact- 
ments enabling  cities  to  condemn  land  in  excess,  while 
not  requiring  the  imposition  of  restrictions  upon  the 
future  use  of  the  surplus  land,  have,  however,  frequently 
authorized  such  restrictions  should  they  prove  necessary 
or  desirable.^' 

25  London  County  Council  (Improvements)  Act  1899,  62  and  63 
Vict.,  Ch.  cclxvi,  Sec.  33;  London  County  Council  (Tramways  and 
Improvements)  Act  1901,  i  Ed.  7,  Ch.  cclxxi.  Sec.  52 ;  Mall  Ap- 
proach (Improvement)  Act,  Parliamentary  Papers,  1914,  Vol.  viii. 
Bill  259. 


102  EXCESS  CONDEMNATION 

Frequently  constitutional  amendments  providing  for 
excess  condemnation  contemplate  the  passage  of  enabling 
statutes  by  the  legislature.  The  constitutional  provision 
of  the  state  of  New  York  made  no  reference  to  protective 
restrictions  upon  surplus  land,  but  the  legislature  in 
the  special  act  conferring  the  power  on  the  city  of  New 
York  provided  that  such  restrictions  might  be  imposed 
upon  the  deeds  of  resale  of  the  surplus  land  as  seemed 
advisable  to  the  Board  of  Estimate  and  Apportion- 
ment.2« 

As  a  rule,  however,  the  legislature  does  not  give  the  city 
the  right  to  impose  restrictions  unless  the  constitution 
sanctions  it.^'^  In  fact,  the  legislature  of  Massachusetts, 
in  one  case  at  least,  did  not  authorize  by  statute  the  im- 
position of  such  restrictions  by  the  city,  even  when  the 
constitutional  provision  under  which  the  law  was  enacted 
stated  that  they  might  be  imposed.^^  There  is  some 
question  whether  a  city  could  impose  these  restrictions  in 
the  absence  of  express  authorization  by  either  the  legis- 
lature or  the  constitution.  It  is  more  than  likely  that 
under  the  general  rule  of  strict  construction  of  municipal 
powers  they  would  be  held  not  to  have  such  powers,  al- 
though no  court  has,  as  yet,  been  called  upon  to  decide 
the  question.  It  is  not  necessary  to  enter  into  further 
discussion  of  these  excess  condemnation  measures  which 
make  optional  the  imposing  of  protective  limitations  upon 
the  future  use  of  the  surplus  land.  They  are  more  prop- 
erly classified  as ,  enactments  designed  for  recoupment 

2«  New  York  Constitution,  Art.  i.  Sec.  7 ;  New  York,  Laws  of 
191S,  Ch.  593. 

"  New  York,  19 14,  Ch.  300. 

28  Massachusetts  Laws  of  1913,  Ch.  778.  See  however  Laws  of 
1912,  Ch.  186,  and  Laws  of  1913,  Chs.  201,  326  (City  of  Worcester) 
and  Laws  of  1913,  Ch.  703  (City  of  Salem),  where  such  restrictions 
were  authorized. 


PROTECTION  OF  IMPROVEMENTS       105 

rather  than  protection  of  improvements,  and  as  such 
they  will  be  considered  in  a  later  chapter.^® 

While  the  enactments  authorizing  the  use  of  excess 
condemnation  for  the  purpose  of  protecting  public  im- 
provements are  rather  numerous,  the  attempts  to  use  that 
policy  have  been  very  few.  This  is  true  of  foreign  coun- 
tries as  well  as  of  the  United  States.  Public  improve- 
ments are  for  the  most  part  adequately  protected  in 
the  cities  on  the  Continent,  but  that  protection  is 
secured  through  other  means  than  excess  condemna- 
tion. 

It  is  probably  true  that  there  is  no  instance  in  which  an 
English  city  has  undertaken  an  excess  condemnation 
project  for  the  primary  purpose  of  protecting  a  public  im- 
provement by  restricting  the  uses  to  which  the  neighbor- 
ing land  may  be  put.  The  motive  for  such  undertakings 
has  always  been  admittedly  financial  and  for  many  years 
the  attempt  has  been  made  to  make  excess  condemnation 
do  in  many  cases  for  the  cities  of  England  what  special 
assessments  do  for  the  cities  of  the  United  States.^® 
There  developed  a  feeling,  however,  that  to  construct  a 
costly  improvement  and  after  acquiring  the  adjoining 
land  to  relinquish  it  without  placing  any  limitations  upon 
the  uses  to  which  it  might  later  be  put,  was  a  shortsighted 
and  wasteful  policy.  Evidence  was  presented  to  the 
Royal  Commission  on  London  Traffic  in  1903,  to  show 
that  some  improvements  in  the  city  of  London  had  been 
well-nigh  ruined  because  of  the  failure  of  the  authorities 
to  exercise  any  control  over  the  adjacent  property. 
Other  improvements,  it  was  alleged,  were  saved  from  a 

29  Infra,  p.  I33ff- 

so  Although  the  betterment  tax  originated  in  England,  it  early 
became  unpopular  and  sank  into  disuse.  Seligman,  Essays  in 
Taxation,  p.  434. 

8 


I04  EXCESS  CONDEMNATION 

similar  fate  only  by  good  fortune.^^  In  1899,  Parlia- 
ment passed  the  act  authorizing  the  construction  of  the 
famous  Holborn-to-the-Strand  improvement.  A  some- 
what detailed  study  of  this  project  will  be  made  in  a  later 
chapter,  but  it  is  interesting  in  this  connection  to  note 
that  the  county  council  was  empowered  to  lease  or  sell 
such  surplus  lands  as  it  deemed  expedient,  subject  to 
restrictions  as  to  their  future  use.  The  power  to  impose 
these  restrictions  was  exceedingly  broad,  and  under  it  the 
lessee  or  buyer  of  the  excess  land  could  be  made  to  agree 
to  the  erection  of  buildings  "  of  such  size  or  class  and 
upon  such  plan  and  elevation,  and  of  such  height  and  of 
such  stories  as  the  Council  shall  think  proper."  ^^  The 
county  council  proceeded  to  avail  itself  of  the  power 
thus  to  control  the  kind  of  buildings  which  were  to  front 
the  new  thoroughfare.  Prominent  architects  submitted 
plans  showing  the  type  of  structures  which  ought  to  be 
built,  and  the  county  council  proceeded  to  offer  the  abut- 
ting lands  for  lease  or  sale  to  those  who  would  agree  to 
erect  on  them  the  buildings  thus  designed.  So  rigid,  in 
fact,  were  the  requirements  imposed  upon  prospective 
purchasers  or  lessees,  that  the  county  council  experienced 
a  good  deal  of  difficulty  in  disposing  of  the  property. 
The  restrictions  were  accordingly  modified  so  as  to  make 
them  less  severe,  with  the  consequence  that  it  was  much 
easier  to  make  a  satisfactory  disposition  of  the  surplus 
land.^'  A  similar  power  to  impose  minutely  detailed  re- 
strictions upon  the  future  use  of  surplus  property  has 
been  granted  from  time  to  time  to  the  county  council 

81  Report  of  Royal  Commission  on  London  Traffic,  Parliamen- 
tary Papers,  1906,  Vol.  xliii,  Question  23904,  page  876. 

32  London  County  Council  (Improvements)  Act  1899,  62  and  63 
Vict.,  Ch.  cclxvi.,  Sec.  33. 

33  Annual  Report  of  the  Proceedings  of  the  London  County 
Council,  1908,  pp.  164-165. 


PROTECTION  OF  IMPROVEMENTS       105 

since  the  act  of  1899,  and  the  statute  recently  enacted  by 
Parliament  providing  for  the  construction  of  the  $5,ooo,t 
000  approach  to  the  Mall  in  London,  carried  with  it  an  al- 
most identical  provision  authorizing  restrictions  upon  the 
adjoining  property  when  it  should  be  leased  or  sold.^* 
The  English  Government  seems  to  be  increasingly  im- 
pressed with  the  advantage  of  making  excess  condemna- 
tion serve  as  a  means  of  protecting  the  beauty  and  use- 
fulness of  a  public  improvement  as  well  as  a  means  of 
paying  for  it. 

The  experience  which  American  cities  have  had  with 
excess  condemnation  as  a  means  of  protecting  improve- 
ments has  also  been  exceedingly  limited.  There  has  been 
some  disposition  to  enact  statutes  or  to  adopt  constitu- 
tional amendments  authorizing  the  use  of  this  policy,  but 
there  has  been  little  disposition  to  test  out  those  powers  in 
any  thoroughgoing  fashion.  No  city  in  the  United  States 
has  as  yet  put  through  successfully  a  project  of  this 
kind. 

Reference  has  already  been  made  to  the  fact  that  in 
1909  and  1910  there  had  been  considerable  agitation  in 
oehalf  of  the  construction  of  a  large  business  thorough- 
fare to  connect  the  North  and  South  Stations  in  the  city 
of  Boston.^^  The  Commission  on  Metropolitan  Improve- 
ments, appointed  by  the  Massachusetts  legislature,  made 
a  preliminary  report  on  the  subject  in  1909  and  convinced 
the  legislature  of  the  necessity  of  making  the  improve- 
ment. In  this  report  the  commission  stated  that  while 
the  Remnants  Act  of  1904^"  would  be  of  some  help  in 
the  protection  of  the  improvement,  it  did  not  authorize 
as  large  excess  takings  of  land  as  would  be  necessary  to 

8*  Mall  Approach   (Improvement)   Act,  1914,  op.  cit. 

35  Supra,  p.  63flf. 

86  Supra,  p.  62flf.    Acts  of  1904,  Oi.  443- 


io6  EXCESS  CONDEMNATION 

insure  the  adequate  and  early  development  of  the  im- 
provement for  business  purposes.  In  view  of  the  serious 
doubts  entertained  as  to  the  constitutionality  of  a  law 
which  permitted  these  more  extensive  takings,  the  com- 
mission urged  that  the  opinion  of  the  Supreme  Court 
upon  that  point  be  requested  since  "  upon  their  opinion 
may  depend  the  determination  of  the  question  whether 
such  a  highway  as  that  herein  referred  to  should  be  laid 
out."  " 

The  legislature,  accordingly,  sent  to  the  Supreme  Court 
of  the  state  a  request  for  an  advance  opinion  upon  the 
constitutionality  of  making  this  liberal  application  of  the 
power  of  excess  condemnation.  The  wording  of  this 
request  indicates  the  character  of  the  undertaking  which 
the  legislature  had  in  mind.  After  setting  forth  that  the 
thoroughfare  is  needed,  that  the  industrial  and  com- 
mercial interests  of  the  city  are  hindered  by  the  lack  of 
it,  that  such  a  thoroughfare  cannot  be  created  by  laying 
out  a  new  street  under  powers  conferred  by  existing 
statutes,  the  legislature  goes  on  to  inquire: 

If  the  legislature  is  of  opinion  that  said  facilities  can  only 
be  secured  by  the  obliteration  in  whole  or  in  part  of  the  pres- 
ent lines  of  individual  ownership  along  any  such  thorough- 
fare as  may  be  laid  out  and  constructed,  the  concentration 
through  the  exercise  of  the  power  of  eminent  domain  of  such 
abutting  estates  in  parcels  of  suitable  size  and  shape,  the  lay- 
ing out  of  rear  streets,  and  the  development  and  use  of  such 
parcels,  under  such  restrictions  as  the  public  authorities  may 
prescribe,  for  warehouses,  mercantile  establishments  and 
other  buildings  suited  to  the  needs  of  trade  and  commerce  as 
now  carried  on  in  other  parts  of  the  world,  ...  is  it  within 
the  constitutional  power  of  the  legislature  to  authorize  the 

'^  Preliminary  Report  of  Commission  on  Metropolitan  Improve-^ 
ments,  Jan.  i,  191  o,  (Senate  Document,  No.  27),  p.  10. 


PROTECTION  OF  IMPROVEMENTS       107 

city  of  Boston  ...  to  lay  out  such  a  thoroughfare  and  rear 
streets,  and  to  take  not  only  the  land  or  easements  necessary 
for  the  same,  but  also  such  quantities  of  land  on  either  side 
of  said  thoroughfare  or  between  the  same  and  said  rear 
streets,  as  may  be  reasonably  necessary  for  the  purpose  here- 
inbefore set  out,  with  a  view  to  the  subsequent  use  by  private 
individuals  of  so  much  of  that  property  taken  as  lies  on  either 
side  of  said  thoroughfare,  under  conveyances,  leases  or  agree- 
ments which  shall  embody  suitable  provisions  for  the  con- 
struction on  said  land  of  buildings  suited  to  the  objects  and 
purposes  hereinbefore  set  out,  and  for  the  use,  management 
and  control  of  said  lands  and  buildings  in  such  manner  as 
to  secure  and  best  promote  the  public  interests  and  purposes 
hereinbefore  referred  to?^^ 

For  reasons  which  need  not  here  be  enumerated  the 
Supreme  Court  of  Massachusetts  replied  that  such  a  law 
would  be  unconstitutional.^*  Accordingly,  the  legisla- 
ture proposed  a  constitutional  amendment  permitting  the 
legislature  to  authorize  public  authorities  to  condemn  land 
in  excess 

provided,  however,  that  the  land  and  property  authorized  to 
be  taken  are  specified  in  the  act  and  are  no  more  in  extent 
than  would  be  sufficient  for  suitable  building  lots  on  both 
sides  of  such  highway  or  street,  and  after  so  much  of  the 
land  or  property  has  been  appropriated  for  such  highway  or 
street  as  is  needed  therefor  [the  legislature]  may  authorize 
the  sale  of  the  remainder  for  value  with  or  without  suitable 
restrictions.*" 

This  amendmsnt  was  ratified  at  the  polls  in  1912,  but 
while  several  acts  have  since  been  passed  conferring  the 
power  of  excess  condemnation  which  it  authorized  upon 

38  Opinions  of  Justices,  204  Mass.,  607  (1910). 

39  Idem,  p.  615. 

*o  Constitution  of  Massachusetts,  Art.  10,  Part  i. 


io8  EXCESS  CONDEMNATION 

other  cities  in  Massachusetts,*^  no  attempt  has  been  made 
to  apply  it  to  the  city  of  Boston.  The  business  thorough- 
fare, the  agitation  for  which  gave  birth  to  the  amendment, 
has  never  been  furthered  by  the  exercise  of  any  of  the 
powers  which  that  amendment  authorizes.  Just  how  the 
Massachusetts  amendment  will  operate  when  applied  for 
the  protection  of  public  improvements  remains  a  matter 
of  conjecture. 

There  is  another  case  in  which  a  plan  to  employ  excess 
condemnation  so  as  to  control  property  adjacent  to  an 
improvement  has  been  strongly  advocated.  It  has  been 
urged  that  the  city  of  New  York  use  this  power  for  the 
development  of  wharves  and  docks  on  the  waterfront  and 
for  ensuring  easy  access  to  such  terminal  facilities.*^  In 
191 1,  a  law  was  passed  conferring  upon  the  Board  of 
Estimate  and  Apportionment  the  power  to  use  excess 
condemnation  in  this  way.  The  relevant  portion  of  the 
law  reads  as  follows: 

And  provided  further,  that  the  areas  of  land  to  be  so  acquired 
for  the  purposes  of  this  act  may  include  such  area,  additional 
and  adjacent  to  that  required  for  the  structure  of  such  ter- 
minals, ways  or  stations  as  said  Board  of  Estimate  or  Appor- 
tionment may  authorize  and  certify  as  required  to  be  re- 
plotted,  regraded  or  otherwise  adapted  for  convenient  access 
to  and  use  of  such  ways  or  stations  or  other  improvement  of 
the  waterfronts  of  said  city  in  connection  therewith ;  and  that 
such  area  not  required  for  such  structure,  but  which  may 
have  been  so  acquired,  after  the  same  shall  have  been  so  re- 
plotted,  regraded  or  otherwise  adapted  for  such  access,  or  rear 

^'^  Infra,  p.  232ff.  Analytical  table  of  statutes.  None  of  these 
cities  have  used  the  power  of  excess  condemnation  for  the  pro- 
tection of  improvements. 

*2  Report  of  Commissioner  of  Docks  and  Ferries,  1910,  on  "  The 
Jamaica  Bay  Improvement";  191 1,  "Organization  of  South 
Brooklyn  Waterfront." 


PROTECTION  OF  IMPROVEMENTS       109 

improvement,  may  be  disposed  of  by  the  city,  subject  to  such 
restrictions  as  said  board  may  see  fit  to  impose  thereon  to 
promote  sucb  access  or  use  or  to  effect  such  improvement. 

No  use  has  ever  been  made  of  the  power  conferred  by  this 
act."  There  is  one  instance,  however,  in  which  the  efifort 
of  an  American  city  to  use  excess  condemnation  for  the 
protection  of  an  improvement  was  not  confined  to  paper. 
This  is  the  case  of  the  famous  Fairmount  Parkway  im- 
provement begun  in  the  city  of  Philadelphia  in  1907,  and 
since  no  other  actual  attempt  has  been  made  in  this  coun- 
try to  employ  excess  condemnation  on  a  large  scale  for 
the  protection  of  improvements  or  for  any  other  purpose, 
the  history  of  this  project  may  be  described  in  some  de- 
tail. 

The  demand  for  the  construction  of  this  improve- 
ment was  in  large  measure  created  and  directed  by  the 
efforts  of  the  Art  Federation  of  Philadelphia  and  the 
Fairmount  Park  Art  Association.  These  organizations 
were  entirely  unofficial  and  devoted  their  energies  to 
furthering  the  artistic  development  of  the  city  and  espe- 
cially to  creating  an  adequate  system  of  parkways  and 
boulevards.  Their  ideas  gradually  crystallized  into  a 
definite  plan  for  the  construction  of  a  parkway  of  im- 
posing lines  to  extend  from  Fairmount  Park  to  the  City 
Hall,  a  distance  of  about  a  mile  and  a  quarter.  Accord- 
ingly in  1903,  after  considerable  discussion,  the  city 
council  placed  Fairmount  Parkway  on  the  city  plan. 
The  next  few  years  were  given  over  to  somewhat  abortive 
eiTorts  to  get  this  important  undertaking  under  way. 
There  was  a  good  deal  of  juggling  with  the  lines  of  the 
parkway  itself.     There  were  more  or  less  unsuccessful 

*8  Laws  of  191 1,  Ch.  776. 


no  EXCESS  CONDEMNATION 

efforts  to  make  terms  with  the  owners  of  the  property 
which  the  city  would  need  to  take ;  there  was  much  voic- 
ing, by  the  mayor  and  others,  of  profound  dissatisfaction 
with  the  road  jury  system  of  awarding  damages  for  con- 
demned land;  there  was  a  growing  conviction  that  the 
project  could  not  satisfactorily  be  put  through  without 
the  grant  of  new  powers  by  the  legislature.  In  1907 
the  work  of  construction  was  begun,  and  in  the  same  year 
the  legislature  passed  a  law  giving  to  the  cities  of  the 
state  the  right  to  use  excess  condemnation  for  the  pro- 
tection of  improvements.  Under  this  act  the  power  was 
given  to 

purchase,  acquire,  enter  upon,  take,  use  and  appropriate  neigh- 
boring private  property  within  two  hundred  feet  of  the  bound- 
ary lines  of  such  property  so  taken,  used  and  appropriated  for 
public  parks,  parkways  and  playgrounds,  in  order  to  protect 
the  same  by  the  resale  of  such  neighboring  property  with  re- 
strictions.** 

This  surplus  property  might  then  be  resold  by  the  city 

with  such  restrictions  in  the  deeds  of  resale  in  regard  to  the 
use  thereof  as  will  fully  insure  the  protection  of  such  public 
parks,  parkways  and  playgrounds,  their  environs,  the  preser- 
vation of  the  view,  appearance,  light,  air,  health  and  useful- 
ness thereof. 

It  will  be  noted  that  this  statute  authorized  a  city  to 
acquire  property  in  excess  of  its  actual  needs  either  by 
purchase  or  by  condemnation.  The  city  of  Philadelphia 
proceeded  therefore  to  acquire  as  many  of  the  properties 
adjoining  the  proposed  improvement  as  it  could  by  private 
contract,  without  resorting  to  the  more  drastic  power  of 
eminent  domain.  The  actual  construction  of  the  parkway 
**  Laws  of  1907,  No.  315. 


PROTECTION  OF  IMPROVEMENTS       iii 

itself  went  forward  with  fewer  delays  than  before,  and 
the  city  was  able  to  buy  a  good  deal  of  the  adjacent  land 
which  it  wished  to  control.  In  1909,  a  Permanent  Com- 
mittee on  Comprehensive  Plans  was  created  by  the  city 
council  and  in  1912  this  body  proceeded  to  appoint  a  sub- 
committee to  deal  with  the  problem  of  the  "  further  plan- 
ning, maintenance,  development  of  the  parkway  on  a  high 
standard  and  the  preparation  of  proper  and  adequate 
legislation  regulating  the  height,  character  and  type  of 
construction,  and  the  purposes  and  uses  of  buildings  to 
be  constructed  on  the  line  of  the  parkway."*'*  Later  in 
the  same  year  the  condemnation  of  a  large  section  of 
land  abutting  on  the  parkway  was  definitely  authorized 
by  ordinance  and  the  city  proceeded  to  take  the  excess 
lands  thus  specified.*^ 

The  vigorous  action  thus  determined  upon,  however, 
was  soon  to  be  brought  to  a  halt.  In  January,  191 3,  the 
city  council  passed  an  ordinance  authorizing  the  mayor 
to  enter  into  a  contract  with  the  Bell  Telephone  Com- 
pany, whereby  a  large  plot  of  the  excess  land  taken  by 
the  city  was  to  be  sold  to  the  company  subject  to  certain 
building  restrictions.*^  The  Bell  Telephone  Company 
was  to  pay  ninety  per  cent  of  the  cost  of  acquiring  the 
property  by  condemnation.  The  company  planned  to 
erect  a  large  and  attractive  office  block  and  the  purpose 
of  the  transaction  was  to  make  possible  the  building  of  so 
appropriate  a  structure  and  to  prevent  the  use  of  the 
property  for  unsightly  or  objectionable  purposes.  The 
land  which  the  city  thus  sought  to  sell  comprised,  among 
other    parcels,    two    lots    owned    by    the    Pennsylvania 

<5  Report  of  the  Permanent  Committee  on  Comprehensive  Plans, 
191 2,  p.  743- 
■*8  Ordinance  July  3,  1912. 
*''  Ordinance  Jan.  16,  1913. 


112  EXCESS  CONDEMNATION 

Mutual  Life  Insurance  Company  and  occupied  by  three- 
story  brick  buildings.  This  company  declared  itself 
ready  to  improve  its  property  in  accordance  with  any  re- 
strictions which  the  city  might  impose  on  it  and  denied 
the  right  of  the  city  to  condemn  the  land  in  question.  It 
alleged  that  the  city  was  actually  taking  its  property  in 
order  to  reconvey  it  to  the  Bell  Telephone  Company  and 
such  an  exercise  of  the  right  of  eminent  domain  was  in 
violation  of  the  constitution  of  Pennsylvania  and  of  the 
United  States.  The  validity  of  the  act  of  1907  and  the 
ordinances  of  July  3,  1912,  and  January  16,  1913,  was 
thus  put  squarely  before  the  court,  and  aft'er  being  up- 
held by  the  district  court,*^  the  excess  condemnation  pro- 
visions were  declared  by  the  Supreme  Court  of  the  state 
to  be  unconstitutional  and  void.*^ 

The  decision  which  took  away  the  city's  power  of  ex- 
cess condemnation  of  land  did  not,  however,  interfere 
with  the  city's  power  to  purchase  excess  land.  This 
power  the  city  has  continued  to  exercise  until  at  the  pres- 
ent time  all  but  about  160  of  the  1000  parcels  which  the 
city  desired  to  take  have  been  acquired.  It  was  still  felt, 
however,  that  the  success  of  the  project  was  seriously 
prejudiced  by  the  inability  of  the  city  to  control  ade- 
quately the  development  of  the  property  immediately  ad- 
joining the  parkway.  As  a  temporary  measure,  there- 
fore, a  statute  was  passed  in  191 5  authorizing  cities  of 
the  first  class  to  regulate  the  location,  size  and  use  of 

*^  Pennsylvania  Mutual  Life  Insurance  Co.  vs.  City  of  Phila- 
delphia, 22  Pa.  Dist.  Reports  195.  The  district  court  sustained  the 
statute  but  issued  an  injunction  against  the  sale  of  the  land  on  the 
ground  that  the  ordinance  did  not  specify  the  restrictions  which 
were  to  be  imposed,  as  was  required  by  the  law  of  1907. 

*9  Pennsylvania  Mutual  Life  Insurance  Co.  vs.  City  of  Phila- 
delphia, 242  Pa.  St.  47  (1913).  Infra,  p.  30oflf.  for  a  discussion  of 
the  legal  principles  involved. 


PROTECTION  OF  IMPROVEMENTS       113 

buildings  and  giving  to  the  Fairmount  Park  Commission 
the  right  to  say  what  buildings  may  or  may  not  be  con- 
structed within  two  hundred  feet  of  any  park,  parkway 
or  other  public  place  under  its  care  and  management, 
together  with  architectural  supervision  over  sych  build- 
ings.°°  In  the  meantime  the  city  has  refused  to  accept 
the  decision  of  the  Supreme  Court  as  a  permanent  bar  to 
the  use  of  excess  condemnation,  and  the  constitutional 
amendment  quoted  above  has  been  passed  by  one  legis- 
lature.^^  If  passed  and  approved  also  by  the  legislature 
next  elected  it  will  be  submitted  to  the  people  for  their 
approval  or  rejection. 

These  somewhat  abortive  efforts  to  protect  public  im- 
provements by  means  of  excess  condemnation  may  not 
constitute  successful  precedents  for  that  policy  but  they 
do  not,  on  the  other  hand,  indicate  that  it  is  inherently 
unworkable  or  injurious.  Experiments  such  as  these 
hardly  justify  settled  conclusions  of  any  sort  regarding 
the  scheme  itself,  and  one  is  obliged  to  form  judgments 
which  are  perhaps  largely  a  priori  regarding  its  real 
merits. 

There  are  two  grounds  upon  which  the  use  of  excess 
condemnation  for  this  purpose  may  be  attacked.  The 
first  of  these  is  the  ground  of  serious  financial  risk.  The 
plan  is  likely  to  be  exceedingly  costly  and  highly  specu- 
lative in  character.  The  city  must  pay  for  all  the  prop- 
erty which  it  condemns,  and  the  fact  that  it  hopes  to 
resell  or  lease  what  it  does  not  actually  use  does  not  in 
the  least  lighten  the  initial  burden  of  getting  the  im- 
provement under  way.     In  order  to  recover  the  amount 

°o  Laws  of  igis,  No.  175.  All  this  is  to  be  done,  by  the  city  in 
the  exercise  of  its  police  power.  As  has  been  indicated  above,  p. 
88ff.,  the  weight  of  authority  would  seem  to  be  against  the  validity 
of  so  liberal  an  extension  of  the  police  power. 

^^  Supra,  p.  100. 


114  EXCESS  CONDEMNATION 

which  it  paid  for  the  land  it  desires  to  control,  the  city 
must  dispose  of  that  land  profitably.  It  must  not  only 
dispose  of  it  profitably,  but  must  also  dispose  of  it  sut>- 
ject  to  such  restrictions  as  will  adequately  protect  the 
improvement.  It  will  be  shown,  at  a  later  point,  that 
the  imposition  of  these  restrictions  may  in  some  cases 
limit  the  market  for  the  land  so  restricted  and  thereby 
lessen  the  city's  chance  of  disposing  of  such  land  at 
a  profitable  figure.  Add  this  risk  to  the  risk  which 
everybody  necessarily  incurs  when  he  buys  land  with  the 
hope  of  reselling  at  a  profit,  and  one  may  conclude  that 
excess  condemnation  for  the  protection  of  improve- 
ments involves  the  city  in  a  speculative  venture  of  no 
mean  proportions.  The  opponents  of  this  policy  urge 
that  this  financial  risk  should  influence  cities  to  seek  a 
safer  and  more  economical  means  of  controlling  the 
property  surrounding  public  improvements. 

The  second  objection  urged  against  this  policy  has 
already  been  mentioned  in  connection  with  excess  con- 
demnation as  applied  to  remnants  of  land;  namely,  the 
drastic  interference  with  the  rights  of  individual  prop- 
erty owners.  It  is  alleged  that  the  results  which  can 
be  expected  from  this  scheme  do  not  warrant  this  inter- 
ference. Property  rights  are  too  sacred  to  be  juggled 
with  carelessly ;  the  fact  that  the  appearance  of  a  man's 
property,  legitimately  used,  does  violence  to  the  idea 
which  a  group  of  city  officers  hold  as  to  how  the  prop- 
erty abutting  a  park  or  pleasure  drive  ought  to  look  or 
be  used,  does  not  justify  taking  that  property  away  from 
him  and  selling  it  to  some  one  else. 

Those  who  advocate  excess  condemnation  for  protect- 
ing improvements  meet  these  objections  directly.  In 
their  opinion  the  adequate  protection  of  a  public  improve- 
ment from  injury  or  disfigurement  is  a  purpose  for  which 


PROTECTION  OF  IMPROVEMENTS       115 

it  is  proper  to  resort  to  as  severe  an  invasion  of  private 
property  rights  as  may  be  necessary.  It  is  just  as  legiti- 
mate to  take  a  man's  property  in  order  to  protect  an 
improvement  as  it  is  to  take  it  in  order  to  create  an 
improvement.  There  is  no  other  effective  way  of  secur- 
ing the  adequate  protection  of  parks  or  highways  than 
by  condemning  the  abutting  land  and  later  reselling  it 
subject  to  appropriate  restrictions  as  to  its  further  use. 
In  other  words,  excess  condemnation  affords  the  only 
effective  means  of  achieving  a  public  purpose  which,  in 
their  opinion,  is  highly  necessary.  Not  only  can  one  jus- 
tify, therefore,  the  interference  with  private  property 
rights  which  it  entails,  but  one  can  also  justify  whatever 
outlay  of  money  may  prove  to  be  necessarily  incident  to 
the  successful  application  of  the  policy.  The  financial 
expediency  of  making  an  expenditure  for  a  necessary 
municipal  improvement  does  not  depend  upon  the 
amount  of  money  paid  out.  It  depends  upon  whether 
the  city  receives  a  fair  return  in  value  for  what  it  pays. 
If  the  city  is  able  to  prevent  the  abuse  and  disfigurement 
of  a  valuable  improvement  only  by  the  exercise  of  excess 
condemnation,  it  should  not  grumble  if  that  protection 
comes  at  a  high  price  and  entails  financial  risk.  Nor 
should  property  owners  complain  because  they  are  ob- 
liged to  give  up  valuable  rights  for  the  common  interest. 
In  a  matter  so  vital  to  the  welfare  of  the  whole  commun- 
ity, the  city  cannot  afford  to  be  niggardly  with  its  money 
nor  squeamish  about  sacrificing  individual  privileges  and 
immunities  to  the  common  advantage  of  the  city. 

It  is  scarcely  necessary  to  reiterate  the  statement  that 
no  more  drastic  invasion  of  private  rights  is  justifiable 
than  is  fairly  demanded  by  the  paramount  interests  of 
the  community.  It  is  indefensible  to  step  wantonly  or 
carelessly  beyond  this  limit.     Most  of  the  American  pro- 


ii6  EXCESS  CONDEMNATION 

visions  which  embody  the  power  to  use  excess  condem- 
nation for  the  protection  of  pubHc  improvements  are 
open  to  a  possible  criticism  on  this  ground.  These  laws 
provide  that  property  may  be  condemned  in  excess  of 
the  actual  needs  of  the  city  and  may  then  be  resold  sub- 
ject to  suitable  restrictions  as  to  future  use.  The  city 
is  not  obliged  to  sell  this  land  to  any  particular  person  or 
at  any  particular  price.  In  the  Philadelphia  project  al- 
ready described,  the  city  entered  into  an  understanding  to 
resell  a  parcel  of  surplus  property  to  a  corporation  even 
before  it  had  actually  secured  title  to  the  land.  This  it 
did  in  spite  of  the  expressed  willingness  of  the  original 
owner  to  retain  possession  of  his  property  on  the  same 
terms  and  subject  to  the  same  conditions  which  the  city 
had  stipulated  in  conveying  it  to  his  rival."^^  This  would 
seem  to  the  ordinary  mind  to  be  unfair,  and  there  is  little 
question  that  this  unfairness  impressed  itself  upon  the 
Supreme  Court  of  Pennsylvania  and  had  no  small  weight 
in  leading  them  to  feel  that  the  whole  policy  of  excess 
condemnation  was  a  rather  wanton  scheme,  by  which 
the  city  took  a  man's  property  away  from  him  and  trans- 
ferred it  to  some  one  else.  It  is  hard  to  see  how  the  city 
gains  by  having  the  property  which  abuts  an  improve- 
ment change  hands.  It  is  interested  only  in  exercising 
over  that  property  the  control  necessary  to  protect  the 
improvement  from  injury  or  disfigurement.  That  con- 
trol need  not  be  less  efifective  because  Smith  owns  the 
property  than  it  would  be  if  Jones  owned  it.  Nor 
would  the  protection  accorded  the  improvement  be  less 
adequate  because  the  man  who  owns  the  restricted  prop- 
erty is  the  same  man  who  owned  it  before  the  improve- 
ment was  created.  If,  therefore,  the  owner  of  property 
which  abuts  an  improvement  wishes  to  retain  his  orig- 

^'^ Supra,  p.  Ill, 


PROTECTION  OF  IMPROVEMENTS       117 

inal  site  or  secure  it  again,  there  seems  to  be  no  reason 
why  the  city  should  not  be  compelled  to  allow  him  the 
privilege  of  buying  back  his  property  subject  to  the 
restrictions  which  the  city  deems  it  advisable  to  place 
upon  its  subsequent  use.  Such  an  owner  would  be  ob- 
liged to  pay  for  the  property  he  formerly  owned  an 
amount  equal  to  the  highest  offer  tendered  to  the  city 
when  the  property  was  offered  for  sale.  In  this  way 
the  city  would  secure  the  increment  of  value  created  by 
the  improvement  it  has  made,  would  secure  for  that  im- 
provement the  protection  which  it  needs,  and  at  the  same 
time  would  not  be  guilty  of  ousting  a  man  from  the 
property  which  he  owns  and  which  he  is  ready  and  will- 
ing to  pay  for  the  privilege  of  retaining.  While  such  a 
policy  would  not  lessen  the  effectiveness  with  which  the 
city  furthers  its  own  interests,  it  would  appeal  to  every 
property  owner's  sense  of  fair  play.  Such  a  provision 
has  never  yet  been  put  into  practice  in  this  country,  but 
the  recent  amendment  to  the  constitution  of  Rhode 
Island  approved  by  the  people  at  the  November  election, 
1916,  contains  such  a  stipulation.  After  providing  in  the 
ordinary  manner  for  the  resale  or  leasing  of  property  not 
required  for  actual  needs,  the  clause  goes  on  to  state  that, 
"  in  case  of  any  such  sale  or  lease,  the  person  or  persons 
from  whom  such  remainder  was  taken  shall  have  the  first 
right  to  purchase  or  lease  the  same,  upon  such  terms  as 
the  state  or  city  or  town  is  willing  to  sell  or  lease  the 
same."  °^ 

There  seems  little  doubt  that  if  excess  condemnation 
were  employed  under  such  a  restriction,  it  would  meet 
with  far  less  criticism  and  call  out  much  heartier  coop- 
eration and  support  than  it  will  without  this  prudent  safe- 
guard to  private  rights.     With  such  a  provision  attached, 

53  Amendment  creating  Art  XVII. 


Ii8  EXCESS  CONDEMNATION 

it  is  fair  to  say  that  excess  condemnation  will  in  many 
cases  be  found  to  afford  the  fairest,  most  effective,  most 
economical  means  of  protecting  public  improvements  by 
controlling  the  development  of  the  neighboring  property. 


CHAPTER  IV 

EXCESS    CONDEMNATION    FOR   RECOUPMENT   OR    PROFIT 

In  the  foregoing  chapters,  excess  condemnation  has 
been  examined  and  evaluated,  not  so  much  as  a  financial 
measure  as  a  direct  and  effective  means  of  solving  certain 
city  planning  problems,  of  serving  highly  important  social 
and  esthetic  ends.  The  control  which  it  affords  over 
remnants  of  land  or  over  the  property  which  surrounds 
a  park  or  boulevard  is  valuable  in  itself,  may,  in  fact, 
be  necessary,  quite  irrespective  of  the  cost  of  exercising 
that  control.  Excess  condemnation  frequently  offers 
the  only  really  effective  method  of  doing  certain  things 
which  must  be  done.  If  it  proves  to  be  a  more  expensive 
method,  that  expense  is  to  be  viewed  philosophically.  In 
the  happy  phrase  of  Flavel  Shurtleff,  "  it  is  a  bill  for 
surgical  services,  and  the  size  of  the  bill  cannot  affect 
the  need  of  the  operation."  The  city  can  afford  to  pay 
well  for  the  protection  secured  for  the  beauty  and  useful- 
ness of  its  public  improvements  through  a  judicious  exer- 
cise of  the  power  of  excess  condemnation. 

The  argument,  however,  which  the  advocates  of  this 
policy  very  frequently  advance,  an  argument  for  excess 
condemnation  quite  irrespective  of  the  purpose  for  which 
it  is  used,  is  that  it  offers  a  safe  and  effective  method  of 
paying  for  public  improvements. 

Even  when  excess  condemnation  is  used  to  replot  rem- 
nants of  land,  or  when  it  is  used  to  prevent  the  injury  or 
disfigurement  of  parks,  public  buildings  or  thoroughfares, 
9  "9 


120  EXCESS  CONDEMNATION 

the  expectation  of  a  profitable  resale  of  the  surplus  land 
is  always  present  as  an  incidental  motive  for  employing 
the  scheme.  It  is  urged  that  a  city  is  doubly  justified  in 
using  a  policy  which  accomplishes  these  valuable  results 
and  which,  at  the  same  time,  pays  its  own  way  or  even 
brings  in  a  substantial  surplus. 

If  the  hope  of  making  money  constitutes  a  strong  sec- 
ondary motive  for  advocating  the  types  of  excess  con- 
demnation projects  which  have  already  been  discussed,  it 
forms  the  sole  motive  for  the  use  of  that  policy  in  a  much 
greater  number  of  instances.  The  constitutional  amend- 
ments, statutes  or  decrees  which  authorize  the  use  of  ex- 
cess condemnation  merely  as  a  means  of  paying  for  a 
needed  public  improvement  are  more  common  than  any 
other  kind.  It  is  the  purpose  of  this  chapter  to  study 
excess  condemnation  as  a  money-making  or  money- 
saving  device,  to  outline  the  provisions  in  the  enactments 
in  which  its  use  for  that  purpose  is  authorized,  to  de- 
scribe the  projects  in  which  it  has  been  so  used  and  to 
compare  it  briefly  with  other  schemes  for  achieving  the 
same  end. 

It  has  already  been  seen  that  as  an  eflfective  and  equi- 
table means  of  paying  for  public  improvements  excess 
condemnation  is  not  without  rivals,  and  that  these  other 
policies  are  also  based  upon  the  principle  of  securing  for 
the  city  some  or  all  of  the  increment  of  value  which,  by 
the  construction  of  the  improvement,  it  creates.  Viewed 
from  the  standpoint  of  pure  theory  it  has  already  been 
indicated  that  the  two  leading  competitors  of  excess  con- 
demnation as  a  financial  device,  special  assessments  and 
increment  taxes,  necessitate  a  less  drastic  interference 
with  private  property  rights  than  does  excess  condemna- 
tion. The  burden  of  proof  thus  rests  upon  the  pro- 
ponents of  excess  condemnation,  to  show  that  that  policy 


RECOUPMENT  OR  PROFIT  121 

is  so  much  more  efficient  in  operation  and  satisfactory  in 
results  that  it  justifies  this  additional  invasion  of  indi- 
vidual privileges  and  immunities.  To  arrive  at  any  final 
conclusion  as  to  the  relative  merits  of  these  different 
financial  policies  it  is  necessary  to  study  them,  not  only  as 
they  actually  operate,  but  also  as  they  may,  under  most 
favorable  conditions,  be  fairly  expected  to  operate. 

Before  giving  further  consideration,  therefore,  to  ex- 
cess condemnation  as  a  money-making  device,  it  will  be 
worth  while,  for  purposes  of  comparison,  to  indicate 
briefly  the  general  character  of  the  results  which  can  be 
obtained  by  the  efficient  application  of  the  two  policies  of 
levying  special  assessments  and  increment  taxes.  Even 
in  the  very  brief  summary  of  these  points  which  is  here 
possible,  a  fairly  clear  notion  may  perhaps  be  given  of 
their  practical  limitations  and  advantages. 

In  considering  the  financial  results  of  even  the  most 
effective  operation  of  the  special  assessment  plan,  it  is 
most  important  not  to  lose  sight  of  the  fundamental 
limitation  which,  by  long  settled  practice,  restricts  the 
scope  of  that  policy.  This  has  already  been  mentioned  ^ 
and  is,  of  course,  the  limitation  of  the  total  amount  which 
can  be  collected  in  special  assessments  to  the  cost  of  the 
improvement  which  the  city  has  undertaken.  If  the 
measurable  benefits  accruing  to  the  property  adjacent  to 
an  improvement  do  not  equal  the  cost  of  that  improve- 
ment, the  city  cannot  assess  the  entire  cost  on  such 
owners,  since  property  can  be  assessed  only  to  the  ex- 
tent to  which  it  is  actually  benefited.^  But  often  the 
benefits  exceed  the  cost  of  the  improvement,  and  in  that 

1  Supra,  i8ff. 

2  Courts  and  commentators  unanimously  agree  that  the  assess- 
ment must  be  limited  to  the  actual  amount  of  benefit  conferred. 
An  elaborate  discussion  of  this  principle,  with  exhaus*'ve  citation 
of  cases,  will  be  found  in  Hamilton,  The  Law  of  Special  Assess- 


122  EXCESS  CONDEMNATION 

case  the  property  is  permitted  to  retain  an  increment  of 
value  created  by  the  city's  money,  an  increment  which 
might  otherwise  constitute  a  substantial  profit  to  the  city. 
The  city  is  content  if  its  books  balance  and  is  not  inclined 
to  begrudge  a  man  an  unearned  increase  in  the  value  of 
his  property,  so  long  as  that  increase  costs  the  city 
nothing. 

A  further  limitation  which  is  sometimes  imposed  upon 
the  levying  of  special  assessments  is  the  restriction  of 
the  zone  of  assessment  to  the  property  actually  abutting 
on  the  improvement.^  The  man  around  the  corner  may 
really  profit  from  the  opening  or  improvement  of  a  street 
quite  as  much  as  some  one  whose  property  is  actually  con- 
tiguous to  the  street  line,  but  according  to  the  frequent 
practice  of  many  states  he  need  bear  no  direct  share  of 
the  cost.  His  property,  so  far  as  that  improvement  is 
concerned,  is  free  from  assessment.  This  seems  to  be 
due  to  the  fact  that  in  levying  special  assessments  it  is 
customary  to  proportion  the  charge  laid  on  any  owner  to 
the  amount  of  the  frontage  he  owns.*  As  soon  as  an 
attempt  is  made  to  assess  property  not  abutting  on  the 
improvement,  this  convenient  guide  is  unavailable  and  the 
task  of  equitably  measuring  the  benefits  properly  charge- 
able to  such  nonabutting  property  is  one  which  the  aver- 
age local  governing  body  might  find  somewhat  perplex- 
ing. 

Since  nonabutting  property  owners,  however,  are  in 

ments,  pp.  180-205.  Many  cities  assess  noncontiguous  property 
when  benefited. 

3  This  is  a  statutory  restriction,  and  in  the  absence  of  statute 
nonabutting  property  may  be  assessed.  Paige  and  Jones,  Taxa- 
tion by  Assessment,  Sec.  619,  citing  cases. 

*  Where  the  front-foot  method  of  assessment  is  employed  non- 
abutting  property  is  exempt  Cooky  on  Taxation,  p.  1223,  citing 
cases. 


RECOUPMENT  OR  PROFIT  123 

many  cases  actually  benefited  by  the  creation  of  an  im- 
provement, it  would  be  manifestly  unfair  to  compel  the 
abutting  property  owners  to  pay  the  entire  cost  of  that 
improvement.  There  is,  furthermore,  a  community  bene- 
fit resulting  from  a  street  or  park  project,  which  is  shared 
by  every  one  in  the  city  to  a  greater  or  less  extent,  but 
which  cannot  be  accurately  measured  to  individuals.  The 
consequence  is  that  in  many  cases  the  city  pays  out  of 
the  public  treasury  a  percentage  of  the  cost  of  construct- 
ing the  improvement,  perhaps  fifty  per  cent,  and  assesses 
the  remainder  only  upon  the  abutting  owners.  In  a  num- 
ber of  instances  the  city  is  positively  limited  by  law  or 
constitutional  provision  to  an  arbitrary  percentage  of 
this  kind.^ 

Such  a  provision  is  in  force  in  the  city  of  Boston.  In 
1891  the  special  assessment  law  of  that  city  provided  for 
a  return  of  almost  the  entire  cost  of  a  public  improve- 
ment. This  law  was  later  modified  and  the  city  was 
obliged  to  pay  one-half  the  cost  of  every  improvement" 
and  the  area  within  which  the  city  might  levy  special 
assessments  was  limited  to  125  feet  on  either  side  of  the 
improved  highway.  In  the  words  of  Hon.  James  A. 
Gallivan,  Street  Commissioner  of  Boston,  "  the  restriction 
of  assessments  to  a  radius  of  125  feet  necessitates  the 
Hmitation  of  the  amount  assessed  to  50  per  cent  of  the 

5  The  Constitution  of  Ohio  stipulates  that  in  no  case  shall  any 
municipality  levy  assessments  for  more  than  fifty  per  cent  of  the 
cost  of  the  private  property  appropriated  for  a  public  improve- 
ment.   Art.  XVIII,  Sec.  11. 

The  Constitution  of  South  Carolina  has  a  somewhat  similar 
provision  requiring  municipalities  to  pay  one-half,  or  in  some  cases 
one-third,  of  the  cost  of  public  improvements.  Art.  X,  Sees.  14, 
15a,  16,  17. 

The  limitations  of  this  kind  existing  in  most  of  the  states  are 
embodied  in  statutes  rather  than  constitutional  provisions. 

^  Laws  of  1902,  Ch.  527. 


124  EXCESS  CONDEMNATION 

cost,  because  it  seldom  happens  (and  then  only  in  40  foot 
residential  street  openings)  that  the  benefit  of  the  im- 
provement within  the  limited  radius  exceeds  or  even 
equals  this  percentage."  ^ 

A  restriction  which  is  sometimes  imposed  upon  the 
amount  which  may  be  taken  by  the  city  through  special 
assessments  is  embodied  in  the  provision  of  the  New 
York  law  that  no  assessment  for  any  one  improvement 
shall  be  levied  which  amounts  to  more  than  one-half  the 
fair  value  of  the  property.  The  fair  value  of  the  prop- 
erty is  held  to  be  its  assessed  value,  and  when  property 
is  undeveloped  and  is  not  assessed  at  the  amount  which 
the  owners  may  reasonably  expect  to  get  for  it,  one-half 
of  this  assessed  value  may  be  very  much  less  than  the 
amount  of  the  benefit  which  accrues  to  the  property  by 
reason  of  a  public  improvement,  and  the  city  is  therefore 
prevented  from  securing  a  large  portion  of  the  increment 
of  value  which  it  creates  and  which,  but  for  this  arbi- 
trary limitation,  it  might  otherwise  recover.^ 

In  the  actual  process  of  estimating  the  benefit  prop- 
erly assessable  to  a  property  owner,  there  is  usually  a 
substantial  cutting  down  of  the  sum  which  the  city  ought 
really  to  receive.  It  is  the  almost  universal  practice  in 
this  country  to  measure  such  expected  benefits  in  ad- 
vance and  make  up  the  assessment  levy  while  the  im- 
provement is  in  process  of  construction,  and  certainly 
before  the  anticipated  accretion  in  the  abutting  land 
values  actually  occurs.  There  is  little  doubt  that  the 
benefits  thus  estimated  are  in  a  large  number  of  cases  far 

7  Proceedings  of  the  Fourth  National  Conference  on  City  Plan- 
ning, 1912,  p.  62. 

^  Nelson  P.  Lewis,  Chief  Engineer  of  Board  of  Estimate  and 
Apportionment  of  the  City  of  New  York,  in  a  paper  entitled 
"  Paying  the  Bills  for  City  Planning."  Proceedings  of  the  Fourth 
National  Conference  on  City  Planning,  1912,  pp.  76-79. 


RECOUPMENT  OR  PROFIT  125 

less  in  amount  than  those  which  actually  accrue,  since  it 
is  seldom  indeed  that  the  property  owners'  interests  in 
such  cases  are  not  more  than  adequately  protected  at  the 
expense  of  the  public  purse.  The  amount  assessed 
against  the  property  abutting  upon  an  improvement  must, 
moreover,  be  offset  by  the  amount  of  damages  awarded 
for  injury  caused  by  the  improvement.  The  same  zeal 
to  protect  the  individual  owner  which  tends  to  make  the 
amount  of  the  special  assessment  too  small,  tends  also 
to  make  the  award  of  damages  too  large.  The  result  is 
that  the  abutting  owner  seldom  pays  in  full  even  the  part 
of  the  benefit  added  to  his  property  which  the  city  in- 
tended to  assess  against  him. 

It  is  thus  claimed  that  the  system  of  special  assessments 
as  it  works  in  most  of  our  states  frequently  fails  to  secure 
to  the  city  all  or  even  a  fair  proportion  of  the  increment 
of  value  to  which  the  city  might  justly  lay  claim.  When 
the  city  has  finished  making  all  the  deductions  from  the 
full  amount  of  the  value  which  it  has  created  by  its  im- 
provement and  actually  collects  its  special  assessments, 
it  usually  finds  the  amount  of  those  assessments  to  be  only 
•a  part  of  the  cost  of  making  the  improvement  and  a  still 
smaller  proportion  of  the  betterment  which  the  neighbor- 
ing property  owners  have  received. 

While  it  is  an  essential  feature  of  the  policy  of  laying 
special  assessments  on  property  benefited  by  an  improve- 
ment that  the  total  amount  assessed  shall  never  exceed 
the  cost  of  making  the  improvement,  it  may  be  questioned 
whether  cities  have  thus  far  secured  by  this  system  as 
large  a  portion  of  that  cost  as  they  might.  They  have 
usually  shown  more  desire  to  avoid  burdening  the  bene- 
fited property  owners  than  to  make  their  public  improve- 
ments self-supporting.  Most  of  the  limitations  on  the 
amounts  of  special  assessments  levied  are  purely  arbi- 


126  EXCESS  CONDEMNATION 

trary,  and  cities  which  are  still  compelled  to  cling  to  them 
cannot  be  said  really  to  have  tested  out  the  financial  pos- 
sibilities of  the  special  assessment  system. 

There  are  two  modifications  of  this  policy  of  financing 
public  improvements  which  are  designed  to  allow  the  city 
to  recover  a  much  larger  proportion  of  the  benefits  created 
by  those  improvements.  Where  these  improved  special 
assessment  policies  have  been  tried  out  they  have,  in  many 
instances,  returned  to  the  city  every  dollar  which  the  im- 
provements cost. 

The  first  of  these  modifications  is  the  so-called  plan  of 
deferred  assessments.  It  has  been  suggested  that  a  city 
is  usually  required  to  estimate  in  advance  the  amount  of 
benefits  which  it  can  assess  to  the  property  adjacent  to  an 
improvement,  and  that  these  estimated  benefits  are,  for 
one  reason  or  another,  much  smaller  than  the  benefits 
which  later  accrue.  Under  a  policy  of  deferred  assess- 
ments the  city  waits  until  the  expected  increase  in  the 
value  of  the  neighboring  property  actually  takes  place.  It 
can  assess,  if  necessary,  the  full  amount  of  this  increase;^ 
while  at  the  same  time  it  is  not  obliged  to  make  a  prop- 
erty owner  pay  for  an  accretion  in  value  which  has  not 
yet  occurred.  The  system  of  deferred  assessments  will, 
if  effectively  applied,  net  the  city  a  substantial  money  gain 
without  working  any  injustice  to  the  owner  of  the  assessed 
property." 

The  second  scheme  for  increasing  the  effectiveness' of 
the  system  of  special  assessments  consists  in  the  ex- 
tension of  the  district  upon  which  assessments  are  laid 
until  it  equals  in  area  the  district  in  which  property  is 

9  The  operation  and  advantages  of  this  plan  are  described  by 
Mr.  Frederick  Law  Olmsted  and  Mr.  Lawson  Purdy  in  Proceedings 
of  the  Fourth  National  Conference  on  City  Planning,  1912,  pp.  75- 
77.  Mr.  Purdy  states  that  deferred  assessments,  used  frequently 
in  Europe,  have  never  been  introduced  in  this  country. 


RECOUPMENT  OR  PROFIT  127 

measurably  increased  in  value  by  the  improvement.  In 
other  words,  assessments  will  not  be  confined  merely  to 
property  immediately  abutting  on  an  improvement,  but  a 
charge  will  also  be  placed  upon  any  and  all  property  in 
the  neighborhood  which  the  improvement  benefits.  The 
increase  in  the  value  of  neighboring  property  will  be  less, 
the  greater  its  distance  from  the  improvement;  and  for 
that  reason  it  would  not  be  fair  to  impose  as  heavy  a 
charge  upon  property  two  blocks  from  a  highway  or 
park  as  upon  property  which  abuts  upon  it.  It  is  quite 
possible,  however,  to  devise  a  sort  of  sliding  scale  by 
which  the  assessments  levied  are  made  to  correspond  in 
fair  approximation  to  the  amount  of  benefit  received. 
The  most  striking  example  of  the  successful  application 
of  this  plan  is  to  be  found  in  the  development  of  the  park 
and  boulevard  system  of  Kansas  City,  Missouri.  Bound 
down  by  limitations  upon  its  borrowing  power,  the  city 
faced  the  dilemma  of  doing  without  parks  and  pleasure- 
drives  commensurate  with  its  size  and  prosperity,  or  of 
making  those  improvements  pay  their  own  way.  The 
city  worked  out  a  plan,  therefore,  for  laying  special 
assessments  upon  all  the  property  whose  value  was  meas- 
urably increased  by  a  public  improvement.  As  far  as 
ordinary  streets  were  concerned  the  city  continued  to 
content  itself  with  placing  a  charge  upon  the  immediately 
abutting  property.  In  the  case  of  boulevards  special 
assessments  were  levied  also  upon  the  property  fronting 
on  the  next  adjoining  parallel  streets.  When  parks  were 
needed,  a  park  district  was  created  for  purposes  of  assess- 
ment. The  immediately  abutting  property  was  heavily 
assessed  and  the  outlying  parts  of  the  district  were  di- 
vided by  arbitrary  lines  into  zones  upon  which  charges 
were  placed,  proportioned  roughly  to  the  amount  of  bene- 
fit accruing  to  them  by  reason  of  the  creation  of  the 


128  EXCESS  CONDEMNATION 

park.  Between  the  years  1896  and  1913,  Kansas  City 
expended  upon  its  park  and  boulevard  system  the  sum 
of  $11,679,902.  By  the  scheme  of  special  assessments 
just  described,  it  recovered  82.3  per  cent  of  that 
amount.^" 

This  has  been  accomplished,  furthermore,  without  un- 
duly burdening  the  property  owners  affected.  Careful  in- 
vestigations indicated  that  parks  and  boulevards  caused 
an  increase  in  land  values  far  greater  than  the  cost  of 
making  those  improvements;  so  much  so,  in  fact,  that 
there  were  numerous  cases  in  which  large  property  owners 
asked  the  park  board  to  construct  boulevards  or  parks 
through  their  lands  and  assess  the  costs  upon  their  prop- 
erty. The  experience  of  Kansas  City  would  seem  to 
indicate  that  American  municipalities  have  not,  as  a  rule, 
fully  utilized  the  resources  available  to  them  in  the  system 
of  special  assessments. 

This  brief  and  general  discussion  of  special  assess- 
ments as  they  operate  in  American  cities  warrants,  per- 
haps, the  following  conclusions  as  to  the  merits  of  that 
policy  as  a  means  of  securing  to  the  city  the  increment  of 
value  created  by  pubHc  improvements :  In  the  first  place, 
it  is  cautious  to  the  point  of  sensitiveness  about  disturbing 
private  property  rights.  Nothing  is  taken  from  a  prop- 
erty owner  usually  but  a  portion  of  the  value  which  the 
city's  money  and  enterprise  created,  for  no  effort  is  made 
to  assess  the  benefited  property  any  more  than  just 
enough  to  meet  the  cost  of  the  improvement.  If  the  city 
actually  makes  a  profit,  it  does  not  claim  it;  it  attempts 
merely  to  make  expenses.  In  the  second  place,  in  order 
to  make  expenses  a  city  must  be,  in  the  operation  of  its 

10  See  Mr.  George  E.  Kessler's  paper,  "  Actual  Distribution  of 
the  Cost  of  Kansas  City  Parks  and  Boulevards."  Proceedings  of 
the  Fifth  National  Conference  on  City  Planning,  1913,  pp.  140-147. 


RECOUPMENT  OR  PROFIT  129 

special  assessment  system,  one  hundred  per  cent  efficient. 
It  must  definitely  plan  to  recover  the  entire  cost  of  an  im- 
provement and  it  must  stop  up  all  leaks.  And  since  one 
hundred  per  cent  efficiency  does  not  often  characterize 
the  fiscal  operations  of  even  the  most  enlightened  Ameri- 
can city,  it  must  follow,  as  a  third  and  final  conclusion, 
that  the  special  assessment  system  as  it  is  most  generally 
practiced  in  this  country  is  one  under  which,  in  nine 
cases  out  of  ten,  the  funds  of  the  city  are  paid  out  and 
not  fully  recovered,  while  an  increment  of  value  fairly 
belonging  to  the  city  is  bestowed  upon  a  limited  group  of 
property  owners. 

The  second  policy  which  might  be  proposed  as  a  rival 
to  excess  condemnation  as  a  means  of  securing  the  value 
which  the  city  creates  by  making  an  improvement,  is  a 
system  of  taxes  or  charges  which  may  be  termed  incre- 
ment taxes.  It  has  already  been  suggested  that  such 
a  tax  would  differ  from  a  special  assessment  in  limiting 
the  amount  which  the  city  could  recover,  not  to  the  sum 
which  an  improvement  cost,  but  to  the  whole  amount  of 
the  increase  in  property  values  caused  by  the  improve- 
ment. If  the  cost  of  the  improvement  is  greater  than 
the  increment  of  value  so  created,  the  city  sustains  a  loss. 
If  that  increment  of  value  is  greater  than  the  cost  of  the 
improvement,  the  city,  instead  of  allowing  that  profit  to 
rest  with  the  benefited  property  owners,  takes  that  profit 
for  itself. 

No  American  state  has  yet  authorized  the  levying  of  a 
charge  of  this  nature  and  the  few  cases  in  which  Euro- 
pean countries  have  experimented  with  it  are  of  rela- 
tively recent  occurrence.  That  experience,  moreover,  has 
not  in  the  main  been  along  the  line  of  definitely  apply- 
ing the  increment  tax  to  projects  of  public  improve- 
ment. 


130  EXCESS  CONDEMNATION 

The  English  increment  tax  was  passed  as  a  part  of  the 
famous  Lloyd-George  budget  of  1909.  It  did  not  attempt 
to  reach  anything  less  than  a  ten  per  cent  increase  in  the 
value  of  land.  On  all  increments  of  value  over  ten  per 
cent,  however,  a  tax  of  twenty  per  cent  was  levied  pay- 
able when  the  property  was  sold,  passed  by  inheritance 
or  leased  for  a  period  of  more  than  fourteen  years.  A 
tax  of  somewhat  similar  character  had  been  levied  in  the 
city  of  Frankfurt  am  Main  in  1904.  This  was  replaced, 
in  191 1,  by  an  imperial  tax  of  a  progressive  type,  ranging 
from  a  ten  per  cent  charge  on  increments  of  value  under 
ten  per  cent,  to  a  charge  of  nineteen  per  cent  on  incre- 
ments between  one  hundred  and  seventy  and  one  hun- 
dred and  ninety  per  cent.^^  The  English  Housing  and 
Town  Planning  Act  of  1909  permits  the  public  authori- 
ties to  intercept  a  part  of  the  increment  of  value  created 
by  a  public  improvement  but  limits  the  portion  of  such 
increment  which  may  thus  be  taken  to  one-half.^^  An 
almost  identical  clause  is  found  in  a  town  planning  enact- 
ment passed  in  New  Brunswick  in  1912.  Under  these 
provisions  it  would  be  possible  for  the  government  to 
recover  more  than  the  actual  cost  of  the  improvement  if 
the  increase  in  the  surrounding  land  values  was  sufficiently 
large.  But  ordinarily  increment  taxes  have  been  levied 
with  the  idea  of  intercepting  the  general  increments  of 
value  commonly  called  "  unearned,"  rather  than  those 
caused  by  particular  public  improvements. 

While  there  seems  to  be  little  available  information  as 
to  how  the  increment  tax  works  when  used  as  a  means  of 
financing  public  improvements,  it  is  possible  to  indicate 
one  or  two  important  ways  in  which  it  would  differ  from 

11  A  brief  discussion  of  these  taxes  is  found  in  Seligman's  Es- 
says in  Taxation,  pp.  491,  So8ff. 
"9  Edw.  VII.,  Ch.  44,  Sec.  58  (3). 


RECOUPMENT  OR  PROFIT  131 

a  system  of  special  assessments  or  excess  condemnation. 
In  the  first  place,  if  an  increment  tax  of  thirty  per  cent 
can  be  levied,  there  is  no  reason  why  the  rate  cannot  be 
made  much  higher;  and  if  the  tax  were  designed  to  re- 
place the  special  assessment  charge  this  would  probably 
be  done.  Instead  of  attempting  merely  to  pay  for  an 
improvement,  the  city  could  take  from  the  owners  of 
benefited  property  all  of  the  increment  created  by  that 
improvement,  or  at  least  a  liberal  portion  of  any  such 
increment.  The  tax  could  be  made  payable  in  annual 
instalments,  in  such  a  way  as  not  to  burden  unduly  the 
property  owner  at  any  one  time.  It  would  be  prac- 
tically a  system  of  special  assessments,  minus  the  restric- 
tion of  the  amount  which  may  be  collected  to  the  cost 
of  the  improvement;  and  there  is  no  clear  reason  why  it 
should  not  prove,  when  put  into  operation,  quite  as  effi- 
cient as  the  latter  policy,  and  more  profitable. 

Such  a  scheme  is  not,  however,  without  difficulties  and 
problems  of  its  own.  The  first  of  these  is  the  problem 
of  determining  how  much  of  the  increase  in  real  estate 
values  caused  by  public  improvements  the  city  can  wisely 
take.  From  the  standpoint  of  pure  theory  the  city  is  en- 
titled to  the  whole  amount  of  such  increase,  and  there 
would  seem  to  be  no  hardship  in  compelling  a  man  to 
give  over  to  the  city  an  increment  of  value  definitely 
caused  by  the  expenditure  of  public  money.  But  sup- 
pose, to  take  an  extreme  case,  that  a  piece  of  property 
worth  $2000  before  the  opening  of  a  boulevard  becomes, 
after  the  completion  of  that  improvement,  worth  $5000. 
It  may  be  that  the  $3000  in  a  sense  belongs  to  the  city  be- 
cause it  was  created  by  the  city.  But  as  a  practical  mat- 
ter, it  would  seem  inexpedient  to  compel  the  owner  of 
that  property  actually  to  pay  $3000  into  the  city  treasury. 
Clearly  the  city  must  content  itself  in  such  a  case  with  a 


132  EXCESS  CONDEMNATION 

portion  only  of  the  profit  which  it  has  earned.  And  if 
it  takes  a  part  only  of  that  profit  in  this  case  why  not  in 
every  case?  And  what  percentage  of  that  profit  should 
it  leave  to  the  real  estate  owners  who  have  done  nothing 
•to  earn  it?  One  does  not  imply  that  such  a  problem  is 
incapable  of  wise  solution  by  suggesting  that  it  is  a  prob- 
lem of  no  small  delicacy. 

There  is,  furthermore,  the  somewhat  difficult  task  of 
determining  to  what  extent  the  value  of  private  property 
has  been  increased  by  the  construction  of  a  public  im- 
provement. In  levying  a  special  assessment,  the  city  in 
most  cases  takes  the  cost  of  the  improvement,  or  a  definite 
percentage  of  it,  and  distributes  it  approximately  accord- 
ing to  the  frontage  held  by  the  adjacent  owners.  In  em- 
ploying excess  condemnation,  the  city  has  a  very  definite 
guide  in  determining  to  what  extent  the  property  adjoin- 
ing an  improvement  has  been  benefited,  and  the  question 
is  answered  for  the  city  by  the  prices  which  the  city  can 
get  when  it  sells  the  property  which  it  condemned  in  ex- 
cess of  actual  requirements.  In  levying  an  increment 
tax,  however,  neither  of  these  convenient  expedients  is 
available.  The  city  must  place  on  the  property  involved 
a  fair  valuation  before  the  improvement  is  made  and  an- 
other fair  valuation  afterwards;  and  the  problem  of  de- 
termining quickly,  peaceably  and  fairly  what  those  valua- 
tions are,  is  not  an  easy  problem  to  solve. 

While  it  is  impossible  to  draw  final  conclusions  as  to 
the  practical  working  of  a  scheme  which  has  never  been 
put  into  operation,  the  foregoing  discussion  will  probably 
sustain  the  tentative  judgment  that  an  increment  tax  ap- 
plied to  public  improvements  in  cities  would  prove  an 
eflfective  financial  policy.  While  the  process  of  reaching 
a  fair  valuation  of  the  property  benefited  by  an  improve- 
ment would  afford  generous  opportunity  for  leakage  and 


RECOUPMENT  OR  PROFIT  133 

even  corruption,  the  city  could,  at  least  in  most  cases, 
recover  with  some  margin  the  entire  cost  of  making  such 
an  improvement.  That  much,  at  least,  could  be  secured 
without  hardship  to  any  one,  and  that  is  a  result  of  which 
the  system  of  special  assessments  can  boast  in  only  a  few 
extraordinary  cases. 

It  is  only  within  recent  years  that  the  possibility  of  em- 
ploying excess  condemnation  as  a  means  of  financing  pub- 
lic improvements  has  been  regarded  by  any  of  our  Ameri- 
can states  and  cities  as  even  an  indifferent  rival  to  the 
established  policy  of  special  assessments.  No  American 
city,  as  yet,  has  made  any  thoroughgoing  trial  of  excess 
condemnation,  and  just  how  successful  a  means  it  will 
prove  to  be  of  intercepting  the  increment  of  value  cre- 
ated by  a  public  improvement,  must  still  be  a  matter  of 
speculation. 

It  has  already  been  indicated  that  the  American  pro- 
visions authorizing  the  use  of  excess  condemnation  for 
financial  purposes  have  fallen  into  two  classes.  In  the 
first  place,  there  have  been  those  enactments  by  which  a 
city  was  allowed  to  condemn  land  in  excess  of  actual  re- 
quirements and  to  resell  that  surplus  land,  with  or  with- 
out suitable  restrictions  in  the  deeds  of  resale  as  to  its 
subsequent  use.  In  other  words,  the  city  operating  under 
such  a  provision  had  three  courses  open  to  it.  It  could 
employ  excess  condemnation  for  the  sole  purpose  of  mak- 
ing or  saving  money ;  it  could  use  it  solely  for  the  purpose 
of  protecting  the  beauty  and  usefulness  of  an  improve- 
ment; or  it  could  combine  the  two  purposes,  and  utilize 
its  power  of  condemning  land  in  excess  to  recoup  the  cost 
of  an  improvement  which  at  the  same  time  it  protected 
from  injury  or  disfigurement.  The  second  group  of  ex- 
cess condemnation  provisions  referred  to  have  been  those 
which  have  conferred  the  power  of  reselling  surplus  land 


134  EXCESS  CONDEMNATION 

without  any  reference  to  the  placing  of  protective  re- 
strictions upon  the  future  use  of  that  land." 

It  has  already  been  stated  that  in  no  American  city  has 
there  been  any  experience  of  any  real  importance  with 
the  policy  of  using  excess  condemnation  as  a  means  of 
financing  public  improvements.  It  will  be  worth  while, 
however,  to  mention  briefly  some  of  the  attempts  made 
to  take  advantage  of  the  powers  conferred  by  the  pro- 
visions just  mentioned,  even  though  they  do  not  give 
a  very  definite  indication  of  the  results  which  might  be 
expected  from  a  more  extended  exercise  of  those  powers. 
One  or  two  projects  of  this  kind,  which  have  been  defi- 
nitely proposed  but  never  undertaken,  might  also  be  men- 
tioned in  this  connection. 

One  of  the  first  American  cities  to  receive  this  power  of 
condemnation  without  being  obliged  to  impose  restrictions 
upon  the  surplus  land  resold  was  the  city  of  Hartford, 
Connecticut."  It  was  permitted  to  dispose  of  the  excess 
land  "  with  or  without  reservations  as  to  the  future  use 
and  occupation  of  such  real  estate,  etc.  .  .  ."  While  on 
one  or  two  occasions  the  city  used  this  power  for  the  pur- 
pose of  dealing  with  small  remnants  of  land,  it  has  never 

18  Proposed  amendment  to  New  York  Constitution,  Art.  I,  Sec. 
6.  Defeated  in  191 1.  Text  is  found  in  Laws  of  191 1,  Appendix, 
p.  4. 

Constitution  of  New  York,  Art.  I,  Sec.  7.  Amendment  adopted 
in  1913. 

Laws  of  New  York,  1914,  Ch.  300.  An  amendment  to  the  charter 
of  the  city  of  Syracuse. 

Proposed  amendment  to  Constitution  of  Wisconsin,  Art.  IX,  Sec. 
3b.    Defeated  1914.    Text  in  Laws  of  Wisconsin,  1913,  Ch.  770. 

Laws  of  Massachusetts,  1913,  Ch.  778.  Granting  power  of  ex- 
cess condemnation  upon  the  State  Highway  Commission  for  a 
special  purpose. 

Laws  of  New  Jersey,  1870,  Ch.  117.  Granting  power  of  excess 
condemnation  in  the  city  of  Newark. 

'*  Laws  of  1907,  No.  61. 


RECOUPMENT  OR  PROFIT  135 

employed  it  as  a  means  of  financing  a  public  improve- 
ment. 

No  attempt  has  been  made  by  the  city  of  New  Haven 
to  make  use  of  a  similar  power  granted  to  it  in  1913.^'^ 

Of  the  five  special  acts  granting  the  power  of  excess 
condemnation  which  have  been  passed  by  the  legislature 
of  Massachusetts/"  three  applied  to  special  public  im- 
provements in  the  city  of  Worcester.  The  only  one  of 
these  three  grants  of  power  of  which  the  city  has  taken 
advantage  is  the  act  of  19 12  relating  to  the  widening  of 
Belmont  Street.  But,  in  this  case  also,  excess  condemna- 
tion has  been  used  only  to  acquire  remnants  of  land.  The 
city  engineer  describes  the  application  of  the  statute  as 
follows : 

We  are  now  employing  its  power  and  taking  all  of  the  es- 
tate affected  by  the  street  layout  where  sufficient  land  does 
not  remain  for  building  purposes,  the  idea  being  to  sell  the 
excess  area  when  opportunity  offers.  As  yet  we  have  had  no 
return  sales  or  disposal  of  this  excess  area,  but  we  believe  in 
time  they  will  sell  to  advantage  and  greatly  reduce  the  cost  in 
land  and  other  damages  for  the  widening  of  the  street.^^ 

The  same  limited  use  seems  to  have  been  made  of  the 
power  of  excess  condemnation  conferred  in  1913  upon  the 
Massachusetts  Highway  Commission.^^  The  commission 
was  authorized  to  use  this  power  in  connection  with  the 
construction  of  a  highway  in  the  town  of  Swampscott. 
After  making  the  plans  for  the  improvement,  the  power  to 
put  them  into  execution  and  in  so  doing  to  secure  any  ex- 
cess property  which  was  deemed  advisable  was  given  to 

1"  Laws  of  Connecticut,  1913,  Special  Act  243. 
i*»  Infra,  p.  232ff. 

IT  F.  A.  McClure,  in  a  letter  to  the  author,  dated  August  5,  1916. 
18  Laws  of  1913,  Ch.  778. 
10 


136  EXCESS  CONDEMNATION 

the  county  commissioners  of  Essex  County.  The  chair- 
man of  the  Massachusetts  Highway  Commission  states, 
"  My  impression  is  that  they,  in  some  instances,  did  take 
more  property  than  was  necessary,  and  in  at  least  one  in- 
stance disposed  of  it.  That  was  a  little  piece  of  property 
that  was  taken  and  I  believe  afterward  conveyed  to  the 
Metropolitan  Park  Commission  representing  the  common- 
wealth." " 

In  regard  to  the  power  to  condemn  land  in  excess  which 
was  given  to  the  city  of  Salem,  Massachusetts,  in  1913, 
the  city  engineer  of  that  municipality  writes  as  follows: 
"  The  power  of  excess  condemnation  was  granted  us  in 
the  proposed  widening  of  Bridge  Street.  This  power  has 
never  been  used.  In  the  spring  of  1914  we  had  planned 
to  do  this  work  and  proceeded  with  it,  but  our  disastrous 
fire  occurred,  wiping  out  one-third  of  the  city,  and  the 
project  was  abandoned.  At  the  present  time  we  are 
proceeding  to  repave  this  street  with  permanent  paving, 
but  on  account  of  financial  conditions  it  was  decided  not 
to  widen  the  street."  ^° 

In  1914  the  power  of  excess  condemnation  was  con- 
ferred upon  the  city  of  Syracuse,  New  York.^^  The 
city  engineer  states  that  there  has  been  but  one  oppor- 
tunity to  make  use  of  the  power  conferred,  a  case  of  a 
street  opening  or  extension  in  which  proceedings  are  now 
under  way.     He  adds, 

There  is  no  assurance,  however,  that  the  purpose  will 
be  accomplished,  since  the  cost  is  deemed  to  be  too  great 
for  the  benefits  conferred.  The  difficulty,  however,  is  not 
in  any  way  due  to  the  application  of  the  excess  condemna- 

19  William  D.  Sohier,  in  a  letter  to  the  writer,  dated  August  5, 
1916. 

20  George  F.  Ashton,  City  Engineer  of  Salem,  Mass.,  in  a  letter 
to  the  author,  dated  August  7,  1916. 

21  Laws  of  1914,  Ch.  300. 


RECOUPMENT  OR  PROFIT  137 

tion  principle,  but  rather  because  the  cost  will  fall  upon  a 
few  taxpayers,  whose  benefits  are  slight.  As  a  matter  of 
fact,  there  is  a  "  kink  "  in  our  taxation  scheme  rather  than 
in  the  excess  condemnation  idea.  .  .  . 

A  proposed  street  extension  forty  feet  wide  passed  through 
a  lot  sixty  feet  wide,  leaving  a  narrow  strip  at  each  side.  We 
proposed  to  take  the  whole  lot,  open  the  street  and  dispose 
of  the  excess  in  whatever  way  seemed  to  the  city's  best  in- 
terests. 

We  have  not  reached  the  final  stages,  and  therefore  can 
ofifer  you  no  experience  of  value  in  the  matter  of  the  final  dis- 
position of  the  excess  land.-^ 

Although  the  actual  experience  which  American  cities 
have  had  with  excess  condemnation  as  a  financial  meas- 
ure seems  to  be  limited  to  the  meager  instances  just  noted, 
a  proposal  was  recently  made  to  apply  the  policy  in  the 
city  of  Cleveland,  Ohio.  The  provision  of  the  Ohio  con- 
stitution, by  authority  of  which  the  city  could  exercise 
that  power,  was  drafted  with  the  idea  of  using  excess 
condemnation  in  cases  where  there  was  need  of  protecting 
the  beauty  or  usefulness  of  a  public  improvement,  since 
it  contained  the  clause  that  the  surplus  land  should  be 
sold,  "  with  such  restrictions  as  shall  be  appropriate  to 
preserve  the  improvement  made."  While  the  proposal  to 
use  excess  condemnation  in  the  case  in  point  was  made 
for  the  subsidiary  purpose  of  replotting  numerous  rem- 
nants of  land  and  imposing  protective  restrictions  upon 
the  real  estate  abutting  the  improvement,  the  primary 
purpose  for  attempting  to  take  land  in  excess  was  so  un- 
deniably a  financial  one  as  to  justify  including  a  dis- 
cussion of  the  project  in  the  present  chapter.  The  pro- 
posal was  made  and  discussed,  furthermore,  with  a  con- 

22  Mr.  Henry  C.  Allen,  in  a  letter  to  the  author,  dated  August  3. 
1916. 


138  EXCESS  CONDEMNATION 

creteness  and  detail  which  cast  a  good  deal  of  light  upon 
the  financial  results  which  excess  condemnation  might  be 
expected  to  produce. 

The  improvement  proposed  was  to  open  or  extend  Car- 
negie Avenue  at  two  separate  points.  The  first  of  these 
extensions  was  in  the  business  section  of  the  city  and 
would  involve  the  opening  of  an  eighty-foot  thoroughfare 
between  East  Fourteenth  Street  and  East  Twenty-second 
Street.  The  second  extension  would  create  a  street  of 
the  same  width  in  the  residential  section  of  the  city  be- 
tween East  Eighty -ninth  Street  and  East  One  Hundredth 
Street.  With  these  sections  opened  up  Carnegie  Avenue 
would  be  a  through  thoroughfare  from  the  center  of  the 
city  well  into  its  outlying  districts,  and  would  greatly  re- 
lieve the  traffic  congestion  on  two  parallel  avenues  on 
which  trolley  lines  ran. 

Careful  thought  was  given  to  the  problem  of  meeting 
the  cost  of  these  much  needed  improvements,  and  in  the 
spring  of  1914,  the  director  of  law  of  the  city  submitted 
to  the  mayor  a  rather  elaborate  report  dealing  with  the 
question  of  ways  and  means.  This  report  contained  an 
analysis  of  three  methods  of  paying  for  the  projected 
street  openings.^^ 

Under  the  first  method,  the  city  would  issue  bonds  to 
pay  for  the  cost  of  purchasing  the  land  required  for  the 
new  street  and  the  cost  of  making  the  streets.  The  abut- 
ting property  owners  would  be  assessed  for  the  expense 
of  building  the  street,  but  would  not  be  asked  to  pay  any 
part  of  the  purchase  price  of  the  land.  The  total  cost  to 
the  city  under  this  method  would  be  $563,525. 

In  employing  the  second  method,  the  city  would  make 

28  Proceedings  of  City  Council  of  Cleveland,  May  i  r,  1914,  p.  349 ; 
Letter  of  J.  N.  Stockwell,  Director  of  Law,  to  Mayor  Newton  D. 
Baker. 


RECOUPMENT  OR  PROFIT  139 

use  of  a  power  conferred  upon  home-rule  cities  in  Ohio 
by  the  constitutional  revision  of  1912.  This  was  the 
power,  when  property  is  needed  to  be  acquired  for  a 
public  improvement,  to  assess  not  more  than  one-half  the 
purchase  price  upon  the  property  benefited  and  not  in 
excess  of  actual  benefits  conferred.  While  under  the 
most  favorable  conditions  the  city  could  by  such  an  assess- 
ment recover  one-half  the  cost  of  acquiring  the  land 
needed  for  the  new  streets,  it  seemed  that  those  most 
favorable  conditions  did  not  and  could  not  obtain.  In 
the  words  of  the  director  of  law: 

No  such  benefits  as  half  the  purchase  price  of  the  land  could 
possibly  accrue  to  the  abutting  and  adjacent  property,  by  rea- 
son of  the  fact  that  the  street  opening  would  leave  the  ad- 
jacent lands  in  odd  parcels  illy  adapted  to  use.  In  many  cases, 
narrow  strips  will  abut  lengthwise  upon  the  proposed  street, 
and  any  benefits  which  will  accrue  to  these  strips,  or  to  the 
adjacent  lots  which  nOw  front  upon  the  side  streets,  could  be 
utilized  only  by  the  concentration  of  ownership  of  all  the  par- 
cels in  each  square,  so  as  to  make  possible  their  reallotment 
with  frontage  upon  the  proposed  street.  Any  benefit,  there- 
fore, to  these  lands  is  contingent  upon  the  ability  of  the  owner 
of  some  one  parcel  to  acquire  other  contiguous  parcels ;  con- 
sequently assessments  which  the  city  might  attempt  to  make 
upon  this  adjacent  property,  if  of  any  considerable  amount, 
I  feel  satisfied  would  be  vigorously  contested.  I  do  not  ven- 
ture to  say  what  part  of  the  fifty  per  cent  assessment  upon 
this  abutting  and  adjacent  land  could  be  enforced,  but  it  seems 
to  me  safe  to  say  that  no  more  than  twenty-five  per  cent  of 
the  total  cost  could  be  held  valid.^* 

On  the  assumption  that  the  city  would  recoup  one-fourth 
the  cost  of  the  land  to  be  acquired,  this  method  would 
reduce  the  gross  cost  of  the  entire  project  to  $425,406. 

2*  Ibid.,  p.  350. 


I40  EXCESS  CONDEMNATION 

The  third  possible  method  of  financing  these  two  ex- 
tensions was  by  the  use  of  excess  condemnation.  Under 
this  plan,  no  special  assessments  would  be  levied  for  any 
purpose,  and  the  city  would  face  the  problem  of  paying 
for  land  acquired  and  the  cost  of  building  the  street,  the 
sum  of  $662,975,  In  addition  to  the  land  needed  for 
streets,  the  city  would  condemn  abutting  and  adjacent 
property  valued  at  $1,251,261.  It  was  estimated  that  by 
the  construction  of  the  improvement  the  value  of  this 
excess  land  would  be  increased  to  $1,816,249.  The  city 
would  apply  to  the  cost  of  the  undertaking  the  $564,988 
thus  made  as  a  profit,  thereby  reducing  that  cost  to  $97,- 
987.2^ 

This  estimate  of  the  financial  results  to  be  achieved 
by  applying  excess  condemnation  to  these  projects  was 
based  on  a  very  elaborate  report  prepared  at  the  request 
of  the  city  by  the  Manufacturers'  Appraisal  Company.^^ 
In  this  report  the  value  both  before  and  after  the  opening 
of  the  street  of  all  the  parcels  of  property  affected  was 
carefully  appraised.  It  is  interesting  to  note  that  there 
was  a  marked  difference  in  the  way  in  which  the  use  of 
excess  condemnation  would  have  worked  out  in  the  two 
separate  extensions  proposed.  The  opening  of  the  street 
between  East  Eighty-ninth  and  East  One  Hundredth 
Streets  promised  practically  no  enhancement  in  the  value 
of  the  adjacent  property.  This  was  due  to  the  fact  that 
this  was  already  a  very  attractive  residence  district  which 
would  enjoy  no  particular  benefit  from  the  opening  of  a 
new  thoroughfare.  In  this  part  of  the  improvement  the 
increase  in  land  values  due  to  the  extension  of  the  street 
would  be  more  than  offset  by  the  damage  done  to  the 

25  The  city  has  never  proceeded  with  this  improvement. 

26  Report  on  Proposed  Carnegie  Avenue  Extensions,  Cleveland, 
Ohio,  published  by  Manufacturers'  Appraisal  Company,  May,  1913. 


RECOUPMENT  OR  PROFIT  141 

property  destroyed  in  connection  with  the  taking.  The 
city  would,  in  fact,  suffer  a  net  loss  of  some  $77,000, 
quite  apart  from  the  cost  of  building  the  new  street  and 
the  administrative  expenses  of  the  undertaking.  On  the 
other  hand,  the  opening  of  a  street  in  the  business  dis- 
trict, between  East  Fourteenth  and  East  Twenty-second 
Streets,  would  produce  a  very  pronounced  increase  in  the 
values  of  the  neighboring  property.  New  frontages  and 
new  corners  would  be  made  available  in  a  part  of  the  city 
where  there  is  now  a  demand  for  business  sites.  This 
accretion  in  value  would,  in  fact,  be  sufficient,  when  inter- 
cepted by  excess  condemnation,  to  net  the  city  about  $90,- 
000  exclusive,  once  more,  of  the  actual  cost  of  street  con- 
struction and  administrative  charges.  These  estimates 
are  of  considerable  value  as  showing  how  excess  con- 
demnation might  reasonably  be  expected  to  work  when 
applied  for  purposes  of  recoupment  to  a  concrete  project. 

In  1912,  Mr.  James  A.  Gallivan,'  Street  Commissioner 
of  Boston,  discussed  before  the  National  Conference  on 
City  Planning  a  proposal  to  finance  the  construction  of 
a  business  thoroughfare  in  Boston  by  means  of  excess 
condemnation.  While  it  is  impossible  to  study  this 
project  in  the  same  detail  as  the  proposed  Cleveland  im- 
provements just  mentioned,  it  nevertheless  indicates  how 
the  financial  outcome  of  such  undertakings  tends  to  vary 
under  different  circumstances. 

The  highway  proposed  in  this  case  was  to  meet  the 
need  for  additional  traffic  facilities.  In  order  to  construct 
it  the  city  would  need  to  take  property  valued  at  $8,- 
118,811.  The  remnants  which  might  be  taken  under  the 
act  of  1904  "  would  cost  $3,804,899. 

If  the  city  undertook,  however,  to  make  a  thorough  ap- 
plication of  the  excess  condemnation  principle  and  take 

2T  Supra,  p.  62S. 


142  EXCESS  CONDEMNATION 

such  land  as  might  be  markedly  benefited  by  the  improve- 
ment, it  would  need  to  condemn  a  strip  on  either  side  of 
the  proposed  highway  one  hundred  and  twenty-five  feet 
in  depth.  This  surplus  land  would  have  an  assessed  value 
of  $7,875,700.  ■  If  the  city  were  fortunate  enough  to  be 
able  to  acquire  all  of  these  three  types  of  property  at  its 
actual  assessed  value,  it  would  have  to  pay  for  it  nearly 
$20,000,000.  But  there  was  little  likelihood  of  securing 
the  land  at  so  low  a  figure.  The  high  rental  value  of  the 
property  would  in  all  probability  add  fifty  per  cent  to  the 
condemnation  price,  making  the  gross  cost  to  the  city 
close  to  $30,000,000. 

In  order  to  recoup  this  sum,  the  city  would  have  to  re- 
sell the  surplus  property  at  a  price  one  hundred  and  fifty- 
three  per  cent  over  its  assessed  value.  It  was  Mr.  Galli- 
van's  opinion  that  such  an  increase  in  the  value  of  the 
neighboring  land  could  not  be  expected  for  several  years 
to  come.  In  the  meantime  this  surplus  land  would  be  left 
on  the  city's  hands  and  unless  it  could  be  put  to  a  finan- 
cially profitable  use  the  interest  charges  and  the  loss  of 
taxes  on  the  land  would  soon  offset  a  very  large  propor- 
tion of  the  expected  recoupment.  The  whole  project 
seemed  to  be  attended  with  rather  serious  financial 
risks.^* 

The  cities  of  the  United  States  which  enjoy  the  power 
to  use  excess  condemnation  have  proceeded  very  slowly, 
somewhat  timorously,  with  their  exercise  of  that  author- 
ity. One  or  two  of  the  cities  of  Canada,  however,  while 
they  have  had  the  right  to  employ  this  policy  no  longer 
than  some  of  our  own  municipalities,  have  made  much 
more  extended  and  vigorous  use  of  that  power.  It  has 
already  been  noted  that  Halifax  is  employing  rather  con- 

28  Proceedings  of  the  Fourth  National  Conference  on  City  Plan- 
ning, 1912,  pp.  64-66. 


RECOUPMENT  OR  PROFIT  143 

sistently  the  power  to  condemn  remnants  of  land.^®  The 
same  is  true  of  Toronto,  although  Toronto  has  not  as  yet 
made  any  use  of  its  power  of  condemning  excess  land  in 
two  hundred  foot  zones  on  both  sides  of  an  improve- 
ment.^** The  city  of  Montreal,  however,  holds  the  very 
unique  distinction  of  having  carried  out  three  projects  of 
excess  condemnation  in  which  it  disposed  of  all  the  sur- 
plus land  taken  and  made  a  considerable  profit.  These 
undertakings  merit  rather  close  study  inasmuch  as  they 
are  among  the  most  successful  excess  condemnation  proj- 
ects carried  out  by  any  city  in  the  world. 

The  first  improvement  to  which  Montreal  applied  the 
principle  of  excess  condemnation  was  the  extension  of  St. 
Lawrence  Boulevard  from  Notre  Dame  Street  to  the 
river  front.  The  new  highway  was  sixty-seven  feet  in 
width  and  about  six  hundred  and  fifty  feet  long.  The 
charter  of  Montreal  contains  a  clause  providing  that, 

the  city  is  authorized  to  purchase  by  mutual  agreement  or 
to  expropriate,  more  than  the  immovables  or  parts  of  im- 
movables required  for  the  object  in  view,  in  order  to  resell 
the  same  and  apply  the  proceeds  of  such  sale,  wholly  or  partly, 
either  to  the  payment  of  the  purchase  price  of  such  im- 
movables or  parts  of  immovables,  or  to  the  payment  of  the 
cost  of  the  works  or  improvements  to  be  performed,  provided 
always  that  the  proprietors  be  not  called  upon  to  pay  the  pur- 
chase price  of  such  immovables  or  parts,  of  immovables.^^ 

Acting  under  the  authority  of  this  clause,  the  city  in  19 12 
condemned  all  the  land  lying  between  the  north  line  of  the 
new  highway  and  the  next  street  running  parallel  to  it. 
This  strip  of  land  had  an  average  depth  of  about  seventy- 
five  feet.    On  the  south  side  of  the  new  street  a  zone  of 

29  Supra,  p.  s8ff. 
^'^  Infra,  p.  236ff. 
81  Article  421  of  the  Charter  of  the  City  of  Montreal. 


144  EXCESS  CONDEMNATION 

land  of  about  the  same  size  was  taken,  although  it  did  not 
extend  through  to  the  street  line  parallel  to  it. 

The  city  paid  for  all  the  land  which  it  condemned,  102,- 
002  square  feet,  the  sum  of  $690,850.00.  It  used  49,- 
258  square  feet  of  land  for  street  purposes  and  sold  the 
surplus  at  public  auction  for  $722,194.00.  The  cost  of 
advertising  the  sale  and  the  fees  charged  by  the  auc- 
tioneers amounted  to  $6344.00.  The  city,  therefore, 
made  a  profit  of  just  $25,000.00  which  could  be  applied 
to  the  cost  of  constructing  the  new  highways.^^ 

Two  other  projects  of  similar  character  have  been  car- 
ried out  in  Montreal.  The  area  of  land  taken  by  the 
city  in  these  cases  was  somewhat  larger  than  in  the  St. 
Lawrence  Boulevard  opening  but  the  profit  accruing  to 
the  city  was  appreciably  smaller,  in  one  instance  $12,817 
and  in  the  other  $16,780.^^ 

In  1 913,  Montreal  entered  upon  another  excess  con- 
demnation project  which,  due  to  unforeseen  circum- 
stances, bids  fair  to  result  far  less  fortunately  for  the 
city  than  those  which  have  just  been  described.  This  is 
the  St.  Joseph  Boulevard  improvement.  About  794,000 
square  feet  of  land  were  acquired  by  the  city,  at  a  cost 
of  about  $2,500,000  dollars.  Some  556,100  square  feet 
of  this  area  was  surplus  land  taken  in  excess  of  actual 

32  This  information  is  made  available  through  the  courtesy  of  Mr, 
J.  Hamilton  Ferns,  Chairman,  Board  of  Assessors,  Montreal,  and 
is  taken  from  the  official  records  of  the  city. 

33  Cartier  Street  Opening 

Land  acquired.  130,817  square  feet. 

Land  used  for  street  55,637         "        " 

Surplus  land  sold  75,180        "        " 

Gross  cost  of  all  the  land  $    99,626 

Net  proceeds  from  sale  of  surplus  112,443 

Profit  $    12,817 


RECOUPMENT  OR  PROFIT  145 

needs.  Before  the  city  had  an  opportunity  to  dispose  of 
this  land,  the  European  war  broke  out  and  a  very  serious 
depression  in  the  real  estate  market  resulted.  It  was 
thought  wise,  therefore,  for  the  city  to  continue  to  hold 
this  property  until  such  time  as  the  market  may  assume 
a  normal  condition.  Mr.  Ferns,  Chairman  of  the  Board 
of  Assessors,  declares  that  while  there  will  be  consider- 
able inroad  into  any  prospective  profit,  by  reason  of  the 
loss  of  interest  charges  and  taxes  on  the  land,  this  may 
be  regarded  as  entirely  accidental  and  due  to  highly  ab- 
normal conditions.^* 

On  the  whole  the  use  of  excess  condemnation  in  Mon- 
treal has  produced  results  which  have  been  very  satis- 
factory. The  efficiency  and  dispatch  with  which  the 
city  has  carried  through  its  projects  may  well  serve  as  a 
model  for  the  cities  of  the  United  States  which  may  under- 
take to  use  that  policy. 

While  cities  in  both  the  United  States  and  Canada  may 
regard  the  use  of  excess  condemnation  for  the  purpose  of 
making  or  saving  money  as  a  novel  scheme  to  be  used 
cautiously,  the  cities  of  many  European  countries  are  in 
a  very  different  position.  It  is  not  new  to  them,  for, 
while  it  cannot  be  said  to  have  been  anywhere  utilized  as  a 


George  Etienne  Cartier  Square 

Land  acquired 

Land  used  for  street  and  square 

Surplus  land  sold 

164,504  square  feet. 
82,426 
82,078        "       " 

Gross  cost  of  all  the  land 

Net  proceeds  from  sale  of  surplus 

Profit 

$    82,252 

99.032 

$    16,780 

Taken  from  the  records  of  the  office  of  the  Board  of  Assessors, 
Montreal,  courtesy  of  Mr.  J.  Hamilton  Ferns. 

3*  Letter  to  the  author,  under  date  of  March  ii,  1916. 


146  EXCESS  CONDEMNATION 

settled  and  permanent  policy  of  financing  public  improve- 
ments, there  have  been  many  European  cities  whose  expe- 
rience with  it  has  been  by  no  means  slight.  Excess  con- 
demnation, as  a  means  of  recoupment,  has  been  em- 
ployed in  these  cities  in  highly  various  forms  and 
under  many  widely  differing  conditions.  A  brief  sum- 
mary of  this  foreign  experience  will  throw  a  good  deal 
of  light  upon  the  actual  working  of  that  policy. 

The  operation  of  excess  condemnation  as  a  means  of 
financing  public  improvements  in  France  will  first  be  con- 
sidered. No  attempt  will  be  made,  however,  to  enter  into 
a  highly  detailed  discussion  of  the  numerous  projects  in 
connection  with  which  it  has  been  used. 

It  has  already  been  indicated  ^^  that  by  a  decree  issued 
in  the  year  1852  the  city  of  Paris  was  given  the  power  to 
use  excess  condemnation  for  the  purpose  of  dealing  with 
remnants  of  land.  That  decree  provided,  not  only  that 
such  fragments  of  land  as  were  incapable  of  suitable  de- 
velopment were  to  be  condemned,  but  that  land  outside 
the  lines  of  a  public  improvement  could  also  be  taken 
when  it  was  needed  in  order  adequately  to  replot  these 
remnants  or  land  which  was  left  on  the  city's  hands  by 
reason  of  the  discontinuance  of  streets. 

Under  the  provisions  of  this  law  the  Government  be- 
gan to  use  excess  condemnation  for  purposes  which  the 
law  did  not  contemplate.  It  began  to  condemn  land  in 
excess  of  what  it  actually  needed  for  a  public  improve- 
ment in  order  to  intercept  the  increment  of  value  which 
such  an  improvement  was  expected  to  create.  The  period 
between  1852  and  1869  was  one  in  which  marvelous 
things  were  done  for  the  city  of  Paris.  It  was  then  that 
Baron  Haussmann,  as  Prefect  of  the  Seine,  planned  and 
executed  the  series  of  improvements  which  makes  Paris 

85  Supra,  p.  54. 


RECOUPMENT  OR  PROFIT  147 

to-day  one  of  the  most  beautiful  capital  cities  of  the 
world,  and  which  left  the  city  with  an  indebtedness  of 
some  eight  hundred  million  francs.  During  that  period 
56.25  miles  of  new  streets  were  constructed,  with  an 
average  width  of  about  eighty  feet.  For  the  purpose  of 
constructing  these  streets,  replotting  remnants  and  dis- 
continued streets,  and  recouping  the  cost  of  the  under- 
takings, the  city  condemned  land  at  an  outlay  of  $259,- 
400,000.  In  1869,  the  city  had  sold  part  of  the  land  which 
it  did  not  need  for  $51,800,000,  and  still  had  on  hand 
728,000  square  yards  valued  at  only  $14,400,000,  though 
390,000  square  yards  of  surplus  land  had  been  acquired 
by  the  discontinuance  of  old  streets  and  had  cost  the  city 
nothing.  The  net  result  of  the  application  of  excess  con- 
demnation, in  so  far  as  it  was  used  in  connection  with 
the  building  of  these  56.25  miles  of  streets,  was,  therefore, 
to  recover  to  the  city  about  one-fourth  of  what  the  city 
had  paid  in  the  first  place  for  the  land.^® 

It  is  impossible  to  analyze  the  figures  given  above  in 
greater  detail,  and  certain  data  seems  to  be  unavailable 
which  would  throw  light  upon  these  undertakings ;  but  on 
the  whole  it  is  perhaps  fair  to  say  that,  as  a  means  of 
securing  for  the  city  any  substantial  portion  of  the  in- 
crease in  land  values  created  by  a  public  improvement,  the 
poHcy  of  excess  condemnation  failed  in  Paris.  This 
statement  is  further  supported  by  the  fact  that  these 
operations  were  carried  on  by  the  city  under  real  estate 
market  conditions  which  were  most  favorable.     It  was  a 

8^  Statement  by  H.  R.  Meyer,  citing  reports  made  by  the  Pre- 
fect of  the  Department  of  the  Seine  to  the  Emperor  and  to  the 
Municipal  Council  of  Paris.  Le  Journal  OMciel  de  I'Empire 
Franqais,  June  18,  1868;  Jan.  13,  and  Nov.  28,  1869.  Municipal 
Real  Estate  Operations  in  Connection  with  Street  Improvements 
in  Paris,  London,  and  the  Provincial  Towns  of  England,  Mass. 
House  Doc.  No.  288,  1904,  pp.  57-60. 


148  EXCESS  CONDEMNATION 

period  of  great  prosperity  and  one  in  which  land  values 
everywhere  rose  and  remained  high.^^ 

While  the  experience  of  Paris  in  using  excess  con- 
demnation as  a  means  of  paying  for  public  improvements 
seems  to  have  been  somewhat  of  a  failure,  it  is  possible 
to  explain,  at  least  in  part,  that  failure.  The  unsuccess- 
ful working  of  the  system  seems  to  have  been  mainly  due 
to  administrative  difficulties.  The  value  of  lands  which 
the  city  found  it  expedient  to  condemn  was  appraised  by 
juries,  and  the  practice  of  these  juries  was  to  value  the 
lands  taken  at  a  figure  so  notoriously  beyond  the  real 
value  as  to  upset  completely  the  estimates  of  the  authori- 
ties and  eat  up  a  large  portion  of  the  expected  profits. 
These  excessive  awards,  for  instance,  were  almost  en- 
tirely responsible  for  causing  some  important  public  works 
authorized  in  1858,  at  an  estimated  outlay  of  $36,000,000, 
to  cost  $82,000,000.^*  In  this  connection,  however,  Mr. 
Meyer  cites  what  he  terms  the  proverbial  exception  which 
proves  the  rule.  The  completion  of  the  Avenue  de 
rOpera  was  authorized  in  1876.  Judging  from  its  pre- 
vious experience  the  city  expected  to  pay  $13,200,000  to 
the  owners  of  expropriated  property  and  to  recover, 
through  the  sale  of  surplus  lands,  $4,200,000.  Contrary 
to  expectations,  however,  the  city  was  obliged  to  pay  but 
$10,800,000  for  the  land  taken  and  the  cost  of  the  under- 
taking was  reduced  to  $6,600,000.^^  As  a  rule,  however, 
the  city  was  obliged  to  see  its  expected  recoupment  swal- 
lowed up  by  the  ridiculously  high  awards  of  condemnation 
juries. 

Continued    experience    convinced    the    governmental 

37  Meyer,  op.  cit.,  p.  58. 
88  Idem. 

39  Meyer  op.  cit.,  p.  61 ;  citing  L*Economi$te  Franqais,  April  20, 
1876. 


RECOUPMENT  OR  PROFIT  149 

authorities  that  the  city  could  not  make  a  profitable  use 
of  excess  condemnation  as  a  means  of  financing  public 
improvements,  because  the  city,  by  reason  of  the  fact  that 
it  was  a  public  corporation,  found  itself  unable  to  secure 
certain  financial  advantages  which  a  private  corporation 
could  and  would  enjoy.  The  city  entered,  therefore, 
upon  the  interesting  policy  of  farming  out  its  various 
public  improvement  projects  to  private  contractors.  The 
contractor,  in  such  a  case,  constructed  the  improvement 
without  cost  to  the  city,  or  at  most  received  a  slight  sub- 
sidy. He  bought  up  land  adjoining  the  improvement  by 
private  sale  or,  if  this  was  not  possible,  the  city  con- 
demned the  land  for  him.  Whatever  profit  he  made  from 
the  resale  of  the  surplus  land  went  to  him  as  compensa- 
tion, and  he  likewise  sustained  any  loss  which  might 
occur.  In  several  instances,  streets  were  opened  or  in- 
sanitary areas  were  cleared  by  such  an  arrangement,  at 
little  or  no  cost  to  the  city  and  at  considerable  profit  to 
the  contractor.  Private  capital  seemed  willing  enough  to 
assume  the  financial  risks  involved  for  the  chance  of  se- 
curing the  increment  of  value  accruing  to  the  surplus 
land.  Mr.  Meyer  describes  a  proposal  of  this  kind  made 
in  1897  by  a  private  corporation  to  the  city  of  Paris. 
"  M.  Gerard,  acting  with  the  Credit  Fonder,  offered  to 
continue  the  Boulevard  Haussmann  by  cutting  through 
from  la  rue  Drouot  to  la  rue  Tailbout.  M.  Gerard  of- 
fered to  turn  the  new  street  over  to  the  city  free  of  cost, 
expecting  to  recover  more  than  the  cost  of  the  street  from 
the  resulting  increase  to  the  value  of  the  property  of 
which  he  and  his  associates  had  acquired  the  title  or  the 
control.  The  operation  would  have  involved  the  acquisi- 
tion by  agreement,  or  by  compulsion  (exercised  by  the 
city),  of  21,560  square  yards,  at  an  estimated  cost  of 
$i3,ooo,ocx).     It  would  have  yielded  10,800  square  yards 


150  EXCESS  CONDEMNATION 

of  surplus  land,  estimated  to  be  worth  $3,000,000.  The 
remaining  $10,000,000,  M.  Gerard  and  his  associates  ex- 
pected to  recover  from  the  sale  of  property  in  the  vicinity 
of  the  new  street."  *^  Apparently  this  proposal  was  not 
acted  upon,  for  in  1912  the  extension  of  the  Boulevard 
Haussmann  remained  unbuilt.  In  that  year  the  city  it- 
self proposed  to  let  the  project  out  to  some  contractor, 
and  on  more  liberal  terms  than  those  stipulated  by  M. 
Gerard.  Mr.  Robinson,  in  his  recent  volume  on  city  plan- 
ning, explains  in  some  detail  the  proposition  which  the 
city  made. 

The  suggestion  was  then  made,  and  approved  by  the  Prefect 
of  the  Seine,  that  the  work  of  extending  the  Boulevard  Hauss- 
mann be  given  to  a  contractor  upon  the  regular  "  sale  by  ten- 
der "  basis.  That  is  to  say,  the  city  would  advertise  that  it  de- 
sired to  have  the  boulevard  extended  to  the  Grande  Boule- 
vard ;  and  that  it  would  use  its  powers  of  expropriation  in  be- 
half of  any  concessionaire  who  would  undertake  to  pay  the 
city  the  arbitrated  value  of  the  land,  tear  down  the  buildings 
and  provide  a  thoroughfare;  the  contractor  being  allowed 
then  to  resell  the  lands  not  required  for  the  thoroughfare,  and 
make  such  profit  as  he  could.  "  The  contractor,"  said  the 
Prefect  of  the  Seine,  "  would  very  likely  construct  new  build- 
ings, and  discount  a  profit  which  the  city,  acting  for  itsellf, 
could  not  consider.  He  could  probably  obtain  better  terms  in 
the  eviction  of  tenants ;  for  he  could  make  a  formal  promise  to 
reinstate  tenants  after  a  short  time,  reasonably  close  to  their 
former  location.  .  .  ."  The  specifications  for  the  work  stipu- 
lated, that  should  its  cost  exceed  the  estimated  50,000,000 
francs,  the  city  and  the  contractor  should  share  the  extra  ex- 
pense in  the  proportion  of  forty  per  cent,  by  the  city  and  sixty 
per  cent  by  the  contractor.  It  seemed  necessary  to  make 
this  stipulation  as  a  partial  protection  for  the  contractor,  and 

*o  Meyer,  op.  cit.,  p.  63 ;  citing  L'Economiste  Frangais,  Sept.  9, 
1893;  July  II.  1891- 


RECOUPMENT  OR  PROFIT  151 

as  an  inducement  to  entertain  the  undertaking,  for  in  a  pro- 
ject carried  out  upon  this  basis  in  the  Marboeuf  quarter,  the 
contractor  had  found  the  cost  of  the  work  onerous  on  account 
of  the  tendency  of  the  arbitration  board  to  be  generous  with 
property  owners  and  evicted  tenants,  the  arbitrators  having 
realized  that  the  city  treasury  could  not  suffer,  the  expense 
falling  upon  the  contractor.  Further  specifications  protected 
the  city  against  nonfulfillment  of  the  contract  and  against 
delays.  .  .  .  On  the  other  hand,  the  city  agreed  to  use  its 
power  of  excess  condemnation  on  behalf  of  the  concession- 
aire, at  his  expense,  and  to  evict  tenants  and  to  maintain 
order. 

It  seems  not  improbable  that  on  some  such  agreement  as 
this  a  contractor,  or  a  group  of  capitalists,  might  often  be 
willing  to  undertake  a  considerable  municipal  improvement 
without  cost  to  the  city  —  a  result  which,  in  the  end,  would 
be  the  same  as  if,  by  the  exercise  of  its  right  of  excess  con- 
demnation, the  city  had  been  able  to  recoup  expenses  through 
the  sale  of  the  excess  lands  at  enhanced  values.*^ 

This  willingness  on  the  part  of  the  French  Government 
to  hand  over  to  private  interests  the  profits  accruing  from 
the  use  of  excess  condemnation  in  financing  municipal 
improvements,  if  those  private  interests  will,  in  turn,  as- 
sume the  financial  risks  incident  to  the  use  of  that  policy, 
is  a  striking  confession  of  lost  confidence  in  that  plan. 
The  failure  of  excess  condemnation  as  a  method  of 
municipal  finance  may  have  been  merely  an  administrative 
failure.  It  was  nevertheless  a  failure.  To  a  large  ex- 
tent it  was  replaced  by  the  plan  just  discussed,  of  farm- 
ing out  the  construction  of  public  improvements  to  priv- 
ate contractors.  The  Council  of  State,  furthermore, 
which  was  originally  inclined  to  permit  the  use  of  excess 
condemnation  for  purposes  of  recoupment,  although  its 
use  for  such  a  purpose  was  clearly  beyond  the  contempla- 

*i  Robinson,  Charles  Mulford,  City  Planning,  p.  262. 
11 


152  EXCESS  CONDEMNATION 

tion  of  the  statutes,  came  ultimately,  as  has  been  sug- 
gested, to  assume  a  much  stricter  attitude,  and  began  to 
limit  with  considerable  rigidity  the  amount  of  land  which 
a  city  might  condemn  in  excess  of  its  real  requirements. 
Recently,  therefore,  there  has  been  little  or  no  effort  in 
France  to  use  excess  condemnation  as  a  money-making 
policy.*^ 

The  strict  construction  placed  by  the  Council  of  State 
upon  the  power  of  excess  condemnation  formerly  used  so 
freely  will  make  necessary  a  change  in  the  French 
statutes  before  any  return  is  possible  to  the  old  practice  of 
using  that  policy  as  a  means  of  municipal  finance.  Yet 
there  seems  to  be  a  growing  conviction  in  Paris  that  ex- 
cess condemnation  can  be  successfully  employed  as  a 
means  of  recoupment,  and  the  past  few  years  have  wit- 
nessed several  attempts  to  revise  the  laws  relating  to  the 
condemnation  of  land  so  as  to  make  such  a  policy  possible. 
A  proposal  to  that  end  was  made  in  the  Chamber  of 
Deputies  in  the  spring  of  1914,  but  the  provision  finally 
enacted  into  law  was  modified  so  as  to  eliminate  the 
clauses  actually  broadening  the  existing  power  of  excess 
condemnation.  It  is  alleged  that  the  emasculation  of  this 
bill  was  not  due  to  any  hostiUty  of  the  French  ParHament 
to  the  principle  of  excess  condemnation  for  recoupment, 
but  rather  to  a  feeling  that  the  proposal  was  not  well 
timed.^^ 

The  experience  of  Belgium  with  the  use  of  excess  con- 
demnation as  a  means  of  serving  the  double  purpose  of 
paying  for  public  improvements  and  protecting  them,  has 
been   of   a  distinctly   different   character   from   that   of 

*2  Supra,  p.  ssflf.  The  decree  of  1852  had  been  extended  to  apply 
to  all  French  cities. 

*3  Rolland,  Louis,  New  Tendencies  in  the  Matter  of  Expropria- 
tion for  Public  Purpose.  Revue  du  Droit  Public  et  de  la  Science 
Politique  en  France  et  a  I'Etranger,  Vol.  31,  1914,  p.  659. 


RECOUPMENT  OR  PROFIT  153 

France,  It  is  an  experience  in  which  serious  blunders 
have  been  made  and  heavy  losses  have  been  sustained, 
but  it  has  been  an  experience  from  which  Belgian  cities 
have  profited ;  so  much  so  that  excess  condemnation  is 
part  of  the  permanent  and  settled  program  for  the  carry- 
ing out  of  public  improvements.  In  1904,  Mr.  Edmund 
M.  Parker  prepared  for  a  committee  of  the  Massachusetts 
legislature  a  very  careful  summary  of  the  operation  of 
this  system  in  Belgium.**  He  traces  the  essential  steps 
in  the  history  of  excess  condemnation  in  Belgian  cities, 
prior  to  the  last  few  years. 

In  1867  a  law  was  passed  in  Belgium  which  gave  to 
cities  the  right  to  condemn  not  merely  the  land  needed  for 
a  public  improvement  but  a  zone  of  surrounding  terri- 
tory. This  land  could  be  taken  either  for  the  purpose  of 
improving  sanitary  conditions  or  for  the  purpose  of  pro- 
tecting public  improvements  or  for  both.  In  the  city  of 
Brussels,  for  whose  benefit  the  law  was  passed  and  by 
which  the  powers  it  granted  were  first  used,  these  two 
purposes  were  very  frequently  combined. 

The  center  of  Brussels  was  exceedingly  congested.  Its 
streets  were  narrow  and  crooked,  individual  lots  were 
extremely  small,  sanitary  conditions  were  most  unwhole- 
some, and  matters  were  made  much  worse  by  the  fact 
that  the  river  Senne  and  its  several  branches,  which 
flowed  through  the  heart  of  the  city,  formed  the  readiest 
means  of  sewage  disposal. 

A  plan  was  finally  evolved  by  which  the  river  was  to 
run  in  a  series  of  conduits,  directly  over  which  was  to  be 
constructed  a  splendid  highway  which  would  serve  as  a 
fitting  center  to  the  business  district  of  the  city.  Ob- 
viously, it  would  be  necessary  to  find  some  way  of  con- 

**Mass.  House  Doc.  1096  (1904),  Edmund  M.  Parker,  Chair- 
man of  Legislative  Committee  on  Eminent  Domain. 


154  EXCESS  CONDEMNATION 

trolling  the  property  abutting  on  such  a  thoroughfare,  as 
well  as  some  way  of  lightening  the  expense  of  the  under- 
taking. It  was  for  the  purpose  of  meeting  these  two 
needs  that  the  law  of  1867  was  passed. 

Work  was  begun  in  the  year  1868,  and  the  improve- 
ment itself  was  brought  to  completion  in  the  late  seven- 
ties and  forms  the  present  New  or  Inner  Boulevards. 

The  city  made  liberal  use  of  its  new  power  of  excess 
condemnation.  Part  of  the  land  fronting  on  the  boule- 
vard was  used  for  public  buildings,  but  most  of  it  was 
offered  for  sale  to  those  who  would  undertake  to  con- 
struct suitable  buildings.  Fearful  lest  the  boulevard  and 
its  surroundings  should  not  be  adequately  and  quickly  de- 
veloped, the  city  sought  to  stimulate  that  development  by 
offering  for  sale  on  ridiculously  easy  terms  the  abutting 
land  which  it  had  taken.  The  purchaser  of  such  land 
was  required  to  make  an  annual  payment  of  four  and 
one-half  per  cent,  on  the  purchase  price  for  sixty-six 
years.  In  addition  the  city  offered  to  loan  on  easy  terms 
to  such  contractors  as  would  put  up  suitable  buildings  on 
the  land  they  purchased,  one-half  of  the  estimated  cost  of 
those  buildings. 

The  result  of  the  making  of  such  easy  terms  was  ex- 
ceedingly disastrous  to  the  cit)^  In  practice,  the  loans 
which  the  city  advanced  proved  to  be  more  than  half  of 
the  cost  of  the  buildings  actually  erected.  In  many  cases 
these  loans  were  never  paid  and  the  city  was  forced  to 
take  the  half-finished  buildings  and  complete  them.  It 
was  obliged,  in  other  instances,  to  take  back  land  which 
it  had  sold  because  the  purchaser  failed  in  his  payments. 
In  addition  to  these  losses,  the  company  which  had  been 
awarded  the  contract  for  the  construction  of  the  conduits 
and  boulevards  failed,  and  the  city  was  obliged  to  com- 
plete the  work  at  a  cost  larger  than  the  original  esti- 


RECOUPMENT  OR  PROFIT  155 

mate.  The  outcome  of  it  all  was  that  the  city  went  to 
the  verge  of  bankruptcy  with  a  debt  of  some  $50,000,000. 
It  still  held  title  in  1904  to  some  four  hundred  buildings 
which  it  rented,  and  for  which  it  had  paid  about  $6,- 
400,000,  perhaps  a  million  dollars  more  than  it  could 
get  from  the  sale  of  them. 

Several  undertakings  of  a  similar  character  were  en- 
tered into  by  the  city  of  Brussels  in  the  early  eighties, 
and  the  financial  results  were  about  equally  disastrous. 
As  soon  as  these  results,  however,  began  to  be  apparent, 
the  city  abandoned  its  foolhardy  policy  and  put  the  re- 
selling of  the  excess  land  it  condemned  upon  a  sounder 
financial  footing.  Instead  of  the  easy  terms  originally 
offered,  at  least  twenty-five  per  cent,  of  the  purchase  price 
of  such  land  had  to  be  paid  in  cash.  The  remainder  was 
to  be  paid  in  fifteen  equal  annual  instalments  with  interest 
at  four  per  cent.  The  policy  of  making  loans  to  prospec- 
tive builders  was  completely  abandoned.  The  opinion  of 
the  officials  of  Brussels  is,  that  had  this  more  reasonable 
policy  of  disposing  of  the  surplus  land  been  adopted  in 
the  beginning,  the  city  would  have  avoided  most  of  the 
financial  disasters  which  have  been  described.  Mr. 
Parker  declares :  "  So  far  from  Brussels  having  con- 
cluded by  reason  of  her  trying  experience  that  the  taking 
of  land  by  zones  was  an  error,  it  is  stated  by  those  in 
authority  that  since  she  has  had  authority  to  take  land  in 
this  way  she  has  employed  no  other  method ;  but,  as  has 
already  been  stated,  it  would  appear  that  the  objects  she 
has  in  view  in  her  takings,  viz. :  the  improvement  not 
only  of  her  highways  but  of  the  appearance  and  sanitary 
conditions  of  the  city,  can  be  attained  in  no  other 
way."  ^'^ 

Other  Belgian  municipalities  have  used   excess  con- 

*5  Idem,  p.  15. 


156  EXCESS  CONDEMNATION 

demnation  for  the  same  purposes  as  has  Brussels,  and  by 
reason  of  better  business  methods  and  more  favorable 
conditions  have  been  able  to  avoid  the  difficulties  in  which 
Brussels  became  involved.  In  Liege,  for  example,  sev- 
eral improvements  in  connection  with  which  excess 
condemnation  was  used  netted  the  city  an  actual 
profit. 

The  state  itself  in  Belgium  does  not  have  the  power  to 
condemn  land  in  excess,  that  authority  being  given  only 
to  cities  to  be  exercised  under  state  supervision.  Ac- 
cordingly, there  has  arisen  the  interesting  situation  of 
the  Central  Government  entering  into  a  contract  with 
the  city  of  Brussels,  by  which  the  city  agrees  to  use  its 
power  of  excess  condemnation  on  behalf  of  the  state 
in  connection  with  the  construction  of  a  railroad  terminal. 
The  state  agrees  to  advance  whatever  funds  may  be  neces- 
sary for  the  project,  and  also  assumes  full  responsibility 
for  any  risk  which  is  involved  in  the  undertaking. 

The  cities  of  Belgium  have,  as  Mr.  Parker  points  out, 
applied  excess  condemnation  to  a  type  of  project  to  which 
it  is  peculiarly  adapted,  namely,  projects  in  which  the 
area  condemned  in  excess  stands  in  great  and  immediate 
need  of  rehabilitation.  Even  at  a  money  loss  such  im- 
provements are  worth  making.  The  experience  of 
Brussels  and  Liege  would  seem  to  indicate,  however,  that 
if  wisely  administered  a  money  loss  is  by  no  means  a 
necessary  result  in  such  an  undertaking. 

There  is  probably  no  country  in  which  excess  con- 
demnation has  been  used  as  a  method  of  municipal  finance 
for  so  long  a  period  and  with  such  interesting  results  as  in 
England,  In  American  cities  excess  condemnation  shows 
no  immediate  signs  of  becoming  a  genuine  rival  of  the 
policy  of  special  assessments  as  a  means  of  paying  for 
public  improvements.     In  the  English  cities,  however,  it 


RECOUPMENT  OR  PROFIT  157 

is  only  within  the  last  few  years  that  special  assess- 
ments have  begun  to  compete  with  the  scheme  of  excess 
condemnation.  What  we,  in  America,  term  "  excess 
condemnation  for  the  purpose  of  making  money,"  the 
Englishman  describes  by  the  one  word  "  recoupment." 
A  brief  history  of  the  way  the  policy  of  recoupment  has 
worked  in  England  will  cast  considerable  light  upon  the 
value  of  that  scheme  as  a  financial  expedient. 

The  legislative  history  of  excess  condemnation  in  Eng- 
land is,  in  one  respect,  similar  to  that  of  France.  In 
neither  case  did  the  statute  under  which  that  power  was 
exercised  for  many  years  confer  any  authority  to  con- 
demn land  in  excess  except  in  cases  of  land  remnants. 
In  both  countries  the  use  of  this  policy  as  a  measure  of 
municipal  finance  was  clearly  beyond  the  original  con- 
templation of  the  law,  and  grew  up  largely  as  a  matter 
of  usage.  In  England,  however,  as  contrasted  with 
France,  the  authorities  acquiesced  in  this  expansion  of 
the  law  until  it  became  to  all  intents  and  purposes  a  part 
of  the  law  itself. 

Excess  condemnation  in  England  dates  back  to  the 
Land  Clauses  Consolidation  Act  of  1845,  which  was  a 
sort  of  codification  of  all  of  the  previous  enactments 
relating  to  the  taking  of  private  property  for  public 
use.**  Only  a  few  of  the  provisions  of  this  statute  afe 
of  any  interest  in  the  present  discussion.  There  was  a 
clause  declaring  that  no  one  could  be  compelled  to  sell 
to  the  authorities  constructing  a  public  improvement,  a 
part  of  a  house,  building  or  manufactory  if  he  was  will- 
ing and  able  to  sell  it  all.*^  Another  provision  stipu- 
lated that  if  the  construction  of  a  public  work  left  a 
remnant  of  vacant  land  less  than  half  an  acre  in  size,  the 
owner  of  such  a  fragment  could  compel  the  authorities 

*6  8  and  9  Vict.,  Ch.  18.  *''  Section  92. 


158  EXCESS  CONDEMNATION 

to  buy  it  unless  he  owned  land  adjoining  with  which  it 
could  be  merged.  Any  work  necessary  to  accomplish 
the  joining  of  the  remnant  to  the  neighboring  land  must 
be  done  and  paid  for  by  the  public  authorities.**  If, 
however,  the  cost  of  making  suitable  connections  be- 
tween remnants  of  land  divided  by  an  improvement  was 
greater  than  the  value  of  the  remnants,  the  authorities 
could  condemn  them.*^  The  act  stipulated  that  the  of- 
ficial body  promoting  a  public  improvement  should  sell 
all  surplus  lands  which  it  may  have  acquired  within  ten 
years  after  the  completion  of  the  work.  Any  such  land 
remaining  unsold  at  that  time  should  thereupon  become 
the  property  "  of  the  owners  of  the  lands  adjoining 
thereto  in  proportion  to  the  extent  of  their  lands  re- 
spectively adjoining  the  same."  °"  And  finally,  when  the 
authorities  were  ready  to  sell  these  surplus  lands  they 
were  required  to  offer  them  first  to  the  person  who 
originally  owned  them;  if  he  could  not  be  found  or  re- 
fused to  buy  them  they  must  next  offer  them  to  the 
owners  of  the  adjoining  property .^^ 

It  is  apparent  that  the  Land  Clauses  Consolidation 
Act  did  not  purport  to  confer  upon  any  public  authority 
the  power  to  condemn  lands  in  excess  of  actual  require- 
ments for  the  purpose  of  reselling  them  at  a  profit.  The 
first  attempt  to  enter  upon  a  policy  of  condemning  land 
for  recoupment  was  made  by  the  Metropolitan  Board  of 
Works,  which  from  1857  to  1889  had  control  of  the 
public  improvements  constructed  in  the  city  of  Lon- 
don. 

It  was  the  policy  of  the  Metropolitan  Board  of  Works 
to  apply  to  Parliament  in  the  case  of  each  projected  im- 
provement for  authority  to  condemn  land,  and  while  the 

*8  Section  93.  ^^  Section  127. 

*»  Section  94.  ^^  Section  128. 


RECOUPMENT  OR  PROFIT  159 

general  provisions  of  the  Land  Clauses  Consolidation  Act 
governed  these  takings,  the  actual  amount  of  land  con- 
demned was  decided  upon  by  the  Metropolitan  Board 
and  the  Lord  Chairman  of  Committees  of  the  House.®* 
In  this  way  the  practice  gradually  grew  up  of  taking, 
in  connection  with  the  construction  of  a  public  work,  a 
good  deal  more  land  than  was  necessary  in  the  hope  of 
reducing  the  cost  of  the  improvement  by  its  subsequent 
resale  or  lease. 

The  plan  of  recoupment  does  not  seem,  however,  to 
have  worked  with  much  success  during  the  regime  of  the 
Metropolitan  Board  of  Works.  Between  1857  and  1889 
the  board  widened  14.13  miles  of  streets  in  the  city  of 
London.  In  order  to  accomplish  this,  the  board  con- 
demned land  worth  $58,859,000  and  recovered  from  the 
sale  of  surplus  land  $26,608,000  or  43.5  per  cent,  of  the 
cost."^  Experience  seemed  to  indicate  that  the  resale  of 
surplus  lands  did  not,  in  most  cases,  cover  the  cost,  and 
the  board  began,  therefore,  to  adopt  a  more  conserva- 
tive policy  in  its  condemnation.  It  confined  itself,  in  the 
main,  to  the  taking  of  smaller  estates  immediately  abut- 
ting on  an  improvement  when  they  could  be  secured  at 
small  cost."^*    They  also 

•^^  Report  of  Select  Committee  of  House  of  Lords  on  Town  Im- 
provements (Betterment),  Parliamentary  Papers,  1894,  Vol.  xv, 
Questions  3652-3654 ;  also  Edwards,  History  of  London  Street  Im- 
provements, p.  II. 

53  Edwards,  op.  cit.,  p.  139.  In  the  Report  of  the  Royal  Com- 
mission on  London  Traffic,  1906,  {Parliamentary  Papers,  1906, 
Vol.  xliii)  there  appear  tables  showing  the  gross  cost  of  each  im- 
provement constructed  and  the  amount  of  recoupment.  While  an 
interesting  fluctuation  appears  in  the  percentage  of  the  recoupment 
to  the  gross  cost,  it  is  impossible,  from  the  limited  data  presented, 
to  explain  that  fluctuation.  It  did  not  seem  worth  while,  there- 
fore, to  reproduce  those  tables  as  they  do  not  lend  themselves  to 
further  analysis. 

"*  Edwards,  op.  cit.,  p.  17. 


i6o  EXCESS  CONDEMNATION 

did  not  take  costly  buildings  cutting  through  new  streets,  at 
the  cost  of  selecting  an  irregular  line  with  awkward  and  un- 
sightly ends  thrust  into  the  frontage  of  the  new  avenue.  It 
it  said  that  this  policy  at  times  impaired  the  dignity  and  con- 
venience of  the  new  street  to  such  an  extent  as  to  give  the 
street  a  bad  name,  and  to  prevent  the  small  bits  of  surplus 
land  from  bringing  such  sums  as  would  materially  reduce  the 
cost  of  the  street.^^ 

There  is  ample  evidence  to  show  that  the  results  of 
excess  condemnation  for  recoupment,  as  practiced  by 
the  Metropolitan  Board,  not  only  were  in  general  un- 
satisfactory, but  were  also  recognized  to  be  unsatisfac- 
tory by  those  intimately  acquainted  with  those  opera- 
tions. When,  in  1877,  a  fresh  grist  of  public  improve- 
ment bills  providing  for  some  application  of  the  recoup- 
ment principle  was  presented  for  approval  to  Parliament, 
the  Marquis  of  Salisbury  voiced  his  objections  to  the 
policy  in  no  uncertain  terms. 

No  doubt  it  is  right  that  the  board  should  repay  itself  for 
street  improvements  by  deriving  a  profit  from  the  frontages 
created  by  a  new  street ;  but  it  by  no  means  follows  .  .  .  that 
whenever  the  board  makes  a  street  it  has  a  right  to  speculate 
in  frontages.  At  best,  it  is  an  exceptionally  dangerous 
power  to  give  the  Board  of  Works.  It  by  no  means  follows 
that  the  taking  of  the  frontages  will  in  all  cases  be  a  repay- 
ment to  the  ratepayers,  though  it  is  certain  that  in  all  cases 
it  will  be  a  serious  disturbance  to  the  freeholder  ...  at  one 
time  it  was  thought  that  every  railway  would  pay;  now  it  is 
thought  that  every  new  street  will  enormously  raise  the  value 
of  the  frontages.  I  believe  the  ratepayers  will  some  day 
find,  to  their  cost,  that  this  idea  is  a  delusion.  Those  pur- 
chases and  resales  of  land,  which  the  Metropolitan  Board 
is  so  fond  of,  involve  great  expense  in  fees  to  lawyers,  archi- 
es Report  of  Legislative  Commission  on  Eminent  Domain,  Mass. 
House  Doc.  288,  1904,  pp.  64-65. 


RECOUPMENT  OR  PROFIT  i6i 

tects,  surveyors  and  valuers  whose  time  is  valuable  and  whose 
charges  are  proportionately  high.  I  have  had  an  opportun- 
ity of  knowing  something  about  it  in  connection  with  two  or 
three  railway  companies,  whose  difficulties  were  very  seri- 
ously aggravated,  if  they  were  not  entirely  caused,  by  sur- 
plus land  which  they  had  acquired  and  which  they  had  dis- 
posed pf,  and  by  the  enormous  charges  which  followed  on 
that  operation.  It  is  very  much  to  be  feared  that  the  Metro- 
politan Board,  unless  it  sells  those  frontages  with  great 
discretion,  will  find  the  costs  of  the  machinery  employed  in 
disposing  of  them  such  as  entirely  to  destroy  the  profitable 
nature  of  the  operation ;  and  that  it  will  discover  that,  while 
it  has  in  its  power  to  do  great  damage  and  to  inflict  great 
loss  on  the  freeholders,  it  has  also  in  its  power  to  squander 
the  money  of  the  ratepayers.^^ 

In  1894,  Mr.  Charles  Harrison,  Vice  Chairman  of  the 
London  County  Council,  testified  before  a  committee  of 
the  House  of  Lords  that  recoupment,  as  it  had  been  car- 
ried out  in  London  by  the  Metropolitan  Board,  had  been 
unsatisfactory  and  had,  as  a  general  rule,  resulted  in 
loss.  In  support  of  this  statement  he  cited  the  case  of 
Gray's  Inn  Road,  an  improvement  in  which  a  street  had 
been  widened. 

Gray's  Inn  Road,  which  was  required  to  be  carried  out  on  the 
recoupment  basis,  after  giving  credit  for  actual  receipts,  cost 
£338,992.  Now,  we  have  had  taken  out  the  value  and  prices 
paid  and  everything  only  for  those  properties  which  would 
have  had  to  be  acquired  if  the  land  required  for  the  street 
alone  had  been  taken,  and  the  cost  of  the  property  actually 
required  for  the  street  would  have  been  £252,700.  So  that 
on  that  occasion  the  public  authority  lost  £86,292  by  taking 
in  that  band  of  land  for  recoupment.^'' 

^^  Hansard's  Parliamentary  Debates,  August  10,  1877,  P-  743- 
^''Report  of  Select  Committee,  op.  cit.,  Question  1390. 


i62  EXCESS  CONDEMNATION 

Mr.  H.  L.  Cripps,  the  parliamentary  agent  of  the  London 
County  Council,  who  had  been  for  twenty-five  years  a 
member  of  the  Metropolitan  Board  of  Works,  testified 
before  the  same  committee  that  "  it  may  be  taken  gener- 
ally that  in  no  single  case,  according  to  the  opinion  of 
competent  valuers,  has  recoupment  turned  out  other  than 
an  extravagant  operation."  ^* 

There  was  one  improvement  made  by  the  Metropolitan 
Board,  however,  in  which  the  policy  of  recoupment  ap- 
pears to  have  resulted  in  a  financial  success,  in  striking 
contrast  to  the  gloomy  results  usually  achieved  in  such 
projects.  This  was  the  case  of  the  opening  of  Northum- 
berland Avenue,  completed  in  the  year  1875.  The  board 
purchased  land  in  this  instance  for  $3,293,000.  After 
the  street  was  opened  it  sold  the  land  it  did  not  need  for 
$4,157,000,  thus  making  a  profit  of  about  $860,000. 
Some  $600,000  of  this  profit  remained  after  the  cost  of 
constructing  the  street  had  been  deducted.  The  project 
appears  to  have  been  phenomenally  successful,  and  is 
very  frequently  cited  to  show  the  profits  which  will 
accrue  to  a  city  through  a  wise  use  of  excess  condemna- 
tion.^^ 

A  closer  examination  of  what  actually  took  place 
in  the  Northumberland  Avenue  improvement  seems  to 
indicate  that  that  case  was  quite  exceptional  and 
that  even  the  large  profit  which  the  Metropolitan  Board 
derived  from  the  undertaking  was,  by  reason  of  mis- 
management, very  much  smaller  than  it  should  have 
been. 

In  the  first  place  the  board  was  able  to  purchase  the 

58  Idem,  op.  cit..  Question  343. 

^^  Idem,  op.  cit.,  Questions  345,  2087.  Edwards,  op.  cit.,  p. 
17. 


RECOUPMENT  OR  PROFIT  163 

land  needed  for  the  new  street  at  an  exceedingly  low 
figure.  It  was  unnecessary,  for  instance,  to  acquire 
any  trade  interests,  or,  in  other  words,  to  pay  damages 
to  cover  the  loss  suffered  by  business  men  who  were 
obliged  to  give  up  their  locations.  These  damages  in 
other  cases  had  frequently  been  almost  as  large  as  the 
purchase  price  of  the  land  condemned.  Furthermore, 
the  land  taken  for  the  new  street  was  practically  all 
owned  by  one  man  who,  for  special  reasons,  sold  it  to 
the  city  at  a  bargain  price.  The  property  consisted  of 
Northumberland  House  and  four  or  five  acres  of  land. 
The  Duke  of  Northumberland  was  willing  to  sell  at  a 
figure  which  guaranteed  a  liberal  profit  to  the  city,  in 
order  to  induce  the  city  to  open  up  the  land  and  take  it 
off  his  hands.  He  did  not  care  to  undertake  the  task  of 
laying  out  the  land  for  building  purposes  and  run  the 
risk  of  long  delay  and  loss.^** 

The  Northumberland  Avenue  project  turned  out  profit- 
ably, in  the  second  place,  because,  when  the  Metropolitan 
Board  got  ready  to  sell  the  surplus  land,  it  found  itself 
besieged  by  persons  who  wished  to  buy.  The  sites  of- 
fered for  sale  were  speedily  purchased  by  a  number  of 
large  hotel  interests  which  had  been  waiting  for  an  oppor- 
tunity to  find  suitable  locations  in  that  part  of  the  city. 
The  board  was  able  to  sell  its  surplus  land  both  quickly 
and  profitably.^* 

It  would  seem,  however,  that  the  conditions  surround- 
ing the  acquisition  and  disposal  of  the  land  were  not  more 
favorable  in  this  case  than  was  necessary,  for  the  Metro- 
politan Board  proceeded  to  allow  a  large  proportion  of 

80/rfem,  op  cit.,  Questions  344-348  inc. 
81  Edwards,  op,  cit.,  p.  1 1. 


i64  EXCESS  CONDEMNATION 

the  profit  which  should  have  accrued  to  the  city  to  sHp 
through  its  fingers.  The  consensus  of  opinion  is,  in 
short,  that  a  considerable  portion  of  the  profit  slipped 
directly  into  the  pockets  of  some  of  the  members  of  the 
Metropolitan  Board.  In  return  for  bribes,  the  board 
disposed  of  valuable  properties  at  prices  far  below  their 
actual  value.  There  is  some  uncertainty  as  to  how 
much  money  the  city  actually  lost  through  these  dis- 
honest methods,  but  Mr.  W.  Emden,  a  member  of  the 
London  County  Council  and  of  the  Parliamentary  Com- 
mittee of  that  body  dealing  with  street  improvements, 
testified  in  1894,  before  the  committee  of  the  House  of 
Lords  already  referred  to,  that,  "  if  the  Northumberland 
Avenue  project  had  been  well  and  properly  managed 
and  honestly  dealt  with,  undoubtedly  a  very  vast  amount 
more  would  have  been  made  out  of  it;  not  £170,000,  but 
I  should  have  put  it  £500,000  or  £600,000  or  £700,000 
more."  ^^  On  the  whole,  the  Northumberland  Avenue 
improvement,  as  it  was  actually  carried  out,  cannot  be 
said  to  afford  a  particularly  valuable  argument  for  those 
who  advocate  the  use  of  excess  condemnation  for  pur- 
poses of  recoupment. 

But  while  most  of  those  who  were  qualified  to  have 
an  opinion  believed,  in  spite  of  the  apparent  success 
achieved  in  the  Northumberland  Avenue  project,  that 
the  experience  of  the  Metropolitan  Board  of  Works 
with  the  policy  of  recoupment  had  been  consistently  un- 
successful and  disappointing,  there  was  also  a   feeling 

82  Testimony  of  Mr.  Walter  Emden,  Report  of  Select  Commit- 
tee, op.  cit..  Question  2788;  statements  indicating  the  existence  of 
corruption  in  this  case  appear  in  Arthur  A.  Baumann's  Betterment, 
Worsement  and  Recoupment,"  pp.  92-100,  also  in  his  testimony 
and  that  of  others  before  the  Select  Committee,  op.  cit..  Questions 
2660-2704,  etc. ;  and  in  the  Interim  Report  referred  to  infra  p,  166, 
footnote  68. 


RECOUPMENT  OR  PROFIT  165 

that  the  scheme  was  not  inherently  unworkable.  If  the 
reasons  why  recoupment  had  failed  could  be  discovered 
and  the  difficulties  overcome,  then  recoupment  itself 
might,  after  all,  prove  successful.  Three  causes  were 
found  which  had  contributed  to  that  failure. 

The  first  reason  for  the  failure  of  the  policy  of  re- 
coupment was  the  fact  that  the  Metropolitan  Board  con- 
sistently, as  a  matter  of  policy,  paid  more  for  land  which 
it  condemned  than  the  land  was  worth.  In  each  case  of 
condemnation  the  fair  market  price  of  the  land  was 
discovered  by  appraisal  or  by  arbitration,  and  the  board 
then  added  ten  per  cent  of  that  amount  as  compensation 
for  the  compulsory  taking.  This  ten  per  cent  was  a  sort 
of  bonus  paid  to  the  man  whose  property  was  taken  from 
him.  Public  sentiment  and  long  established  precedent 
sanctioned  the  payment  of  this  bonus,  but  in  each  case 
it  increased,  by  just  that  amount,  the  financial  risk  which 
the  board  was  obliged  to  assume  in  its  attempt  to  recover 
the  purchase  price  of  the  land  by  the  sale  of  the 
surplus.®^ 

A  second  factor  which  made  the  profitable  use  of 
recoupment  almost  impossible  has  already  been  men- 
tioned.®* This  was  the  exceedingly  high  prices  which 
had  to  be  paid  to  buy  out  trade  interests  which  had  to  be 
disturbed.  The  report  of  the  Massachusetts  commis- 
sion already  cited  describes  this  situation  with  great 
clearness. 

Whenever  a  public  authority  takes  land  by  compulsory 
powers  under  the  Land  Clauses  Consolidation  Act  of  1845, 
every  o'ccupant  of  that  property,  whether  freeholder  or  lease- 
holder, who  has  been  carrying  on  a  business  on  that  property, 

83  Report  of  Legislative  Commission  on  Eminent  Domain,  Mass. 
House  Doc.  No.  288,  1904,  p.  69. 
8*  Supra  p.  163. 


i66  EXCESS  CONDEMNATION 

is  entitled  to  compensation,  if  he  can  show  that  dispossession 
will  impair  the  goodwill  of  his  business.  Frequently  there  is 
very  little  injury  to  that  goodwill  and  yet  in  practice,  the 
juries'  awards  for  compensation  practically  always  are  based 
on  the  supposition  of  complete,  or  all  but  complete,  destruc- 
tion of  the  goodwill.^^ 

Mr.  Charles  Harrison,  quoted  above,^®  declared,  "  The 
figures  which  I  have  taken  out  of  all  these  recoupment 
cases  (the  figures  were  not  put  in  evidence)  show,  not 
that  there  is  a  loss  on  the  land  which  you  acquire,  but  the 
loss  or  recoupment  arises  exclusively  from  your  buying 
that  which  you  cannot  resell  (trade  interests),  and  repre- 
sents so  much  waste,  costs  and  other  items  of  expenditure 
attached  to  each  particular  interest."  "^ 

A  third  source  of  loss  to  the  public  in  connection  with 
the  improvements  to  which  the  Metropolitan  Board  ap- 
plied the  policy  of  recoupment  was  the  corruption  of  the 
board  itself.  It  is  unnecessary  to  go  into  details.  It  is 
sufficient  to  state  that  conditions  grew  so  notoriously  bad 
as  to  cause  the  appointment,  in  1888,  of  a  "  Royal  Com- 
mission to  Inquire  into  Certain  Matters  Connected  with 
the  Working  of  the  Metropolitan  Board  of  Works."  In 
its  report  this  commission  uncovered  an  organized  sys- 
tem of  jobbery  and  corruption  in  connection  with  the 
purchase  by  the  board  of  trade  interests  as  well  as  in 
connection  with  the  resale  of  surplus  lands.^^  There 
is  no  question  whatever  that  the  Government  lost  very 
large  sums  of  money  through  the  systematic  dishonesty 

^^  Report  of  Legislative  Commission  on  Eminent  Domain,  op. 
cit.,  p.  72. 

«6  Supra,  p.  161. 

«7  Report  of  Select  Committee,  op.  cit..  Question  1383. 

88  Interim  Report  made  in  1888,  Parliamentary  Papers,  1888,  Vol. 
S6. 


RECOUPMENT  OR  PROFIT  167 

of  its  officers,  although  there  is  no  way  of  estimating  even 
approximately  how  large  those  sums  were. 

There  is  no  way  of  determining  how  important  these 
three  factors  were  in  preventing  the  system  of  recoup- 
ment from  proving  financially  successful.  English  au- 
thorities seem  to  feel,  however,  that  the  exorbitant  sums 
paid  by  the  Metropolitan  Board  for  the  trade  interests 
it  was  obliged  to  acquire  had  a  more  serious  effect  than 
any  other  one  cause  upon  the  profits  which  should  or 
might  have  accrued  to  the  city  from  these  various  recoup- 
ment projects.  In  1894,  a  select  committee  of  the  House 
of  Lords  was  appointed  to  consider  the  advisability  of 
combining  a  scheme  of  special  assessments  with  the  sys- 
tem of  recoupment.  In  their  voluminous  report,  already 
cited,^*  there  is  much  discussion  of  the  relative  merits  of 
the  two  plans,  and  many  distinguished  students  of  munici- 
pal finance  gave  the  committee  the  benefit  of  their  views. 
The  conclusion  of  this  committee  regarding  the  system 
of  recoupment  was  as  follows :  "Some  evidence  was  given 
by  persons  who  had  actual  experience  of  the  operation  of 
such  a  system,  the  general  effect  of  which  was,  that  it 
had  not  proved  successful;  but  the  committee  are  not 
satisfied  that  it  has  ever  been  tried  under  circumstances 
calculated  to  make  it  successful,  inasmuch  as  no  suffi- 
cient power  has  ever  yet  been  given  to  local  authorities 
to  become  possessed  of  the  improved  properties  without 
buying  out  all  the  trade  interests,  a  course  which  is  in- 
evitably attended  with  wasteful  and  extravagant  expen- 
diture." ^" 
By  the  Local  Government  Act  of  1888  the  Metro- 
es Report  of  Select  Committee  of  House  of  Lords  on  Town  Im- 
provements (Betterment)  1894.  Parliamentary  Papers,  1894,  Vol. 
XV. 
'0  Report  of  Select  Committee,  op.  cit.,  iii-iv. 
12 


i68  EXCESS  CONDEMNATION 

politan  Board  of  Works  passed  out  of  existence  and 
the  London  County  Council  became  and  still  remains  its 
successor.  The  powers  of  the  council  in  respect  to  pub- 
lic improvements  did  not  differ  materially  from  those 
of  its  predecessor.  It  was  obliged  to  secure  authority 
to  expropriate  private  property  whenever  it  entered  upon 
the  construction  of  a  new  public  work,  and  its  general 
policy  of  condemning  land  for  public  improvements  was 
nominally  still  guided  in  the  main  by  the  Land  Clauses 
Consolidation  Act  of  1845.  But  the  kind  of  enabling 
act  which  it  had  become  the  settled  policy  of  Parliament 
to  pass  allowed  the  council  to  put  through  street  im- 
provements with  a  freedom  which  would  have  been  im- 
possible if  the  Land  Clauses  Act  had  been  strictly  ad- 
hered to.  These  changes  in  policy  all  worked  in  the 
direction  of  making  it  easier  to  apply  successfully  the 
principle  of  recoupment.  Permission  could  be  readily 
obtained  to  acquire  large  areas  of  surplus  land,  either 
for  profitable  resale  or  for  the  purpose  of  rehousing 
those  who  had  been  dishoused  in  connection  with  an  im- 
provement. Greater  freedom  was  allowed  in  reselling 
surplus  land  than  under  the  act  of  1845  ^"d  public  au- 
thorities were  frequently  allowed  to  condemn  part  of  a 
man's  property  without  being  obliged  to  take  it  all,  a 
requirement  which  had  earlier  proved  itself  to  be  a 
serious  hardship  to  the  local  government.'^^ 

Although  these  changes  in  the  policy  of  condemning 
and  disposing  of  land  in  connection  with  public  improve- 
ments had  come  gradually  to  widen  the  county  council's 
power  to  utilize  the  recoupment  principle,  the  council  did 
not  seem  satisfied  that  those  powers  were  sufficient  to 

''^  Hunt,  Frank  W.,  "  The  Tendency  of  Recent  Modifications  of 
the  Lands  Clauses  Act "  in  Transactions  of  the  Surveyors'  Insti- 
tution, 1912,  Vol.  xliv,  p.  ii7ff. 


RECOUPMENT  OR  PROFIT  169 

enable  it  to  avoid  some  of  the  more  serious  difficulties 
which  had  confronted  the  Metropolitan  Board  of  Works. 
Almost  as  soon  as  it  assumed  its  new  duties  it  began  to 
study  and  discuss  the  relative  merits  of  various  methods 
of  paying  for  pubHc  improvements. 

It  was  suggested,  for  instance,  that  the  burdensome 
necessity  of  buying  out  expensive  trade  interests  which 
would  be  disturbed  by  an  improvement  would  be  avoided 
if  the  council  were  to  acquire  merely  the  freehold  and 
long-leasehold  interests.  This  would  allow  the  tenant  in 
immediate  possession  to  stay  until  the  expiration  of  his 
lease,  and  would  free  the  council  from  any  obligation  to 
pay  him  damages.  By  far  the  liveliest  discussion  arose, 
however,  over  the  question  whether  it  would  be  wise  to 
borrow  the  American  system  of  special  assessments,  to 
be  used  either  independently  in  paying  for  improvements 
or  as  an  adjunct  to  the  excess  condemnation  policy. 
Allusion  has  already  been  made  to  the  select  committee 
of  the  House  of  Lords  which  studied  this  problem  and 
reported  in  1894.  The  finding  of  the  committee  was  in 
substance  that  the  system  of  special  assessments  or 
"  betterment  charges "  as  they  are  called  in  England, 
was  based  on  an  equitable  principle.  There  was  room 
for  such  serious  abuse  in  the  operation  of  such  a  scheme, 
however,  that  the  committee  was  of  the  opinion  that  it 
ought  to  be  surrounded  by  certain  safeguards  to  private 
rights  not  usually  found  in  the  American  statutes  on  the 
subject.'^^ 

The  result  of  the  investigation  and  agitation  promoted 
by  the  London  County  Council  finally  won  Parliament 
over  to  a  qualified  approval  of  the  system  of  special 
assessments.  At  the  present  time  it  is  used  in  addition 
to  recoupment  in  financing  public  improvement  projects, 

^2  Report  of  Select  Committee,  op.  cit.,  pp.  iii-iv. 


170  EXCESS  CONDEMNATION 

and  by  means  of  it  the  county  council  expects  to  recover 
a  portion  of  the  increment  of  value  created  by  a  public 
work  which  would  be  lost  to  the  city  under  excess  con- 
demnation.''^ 

The  projects  in  connection  with  which  the  London 
County  Council  used  the  principle  of  recoupment  alone 
show,  in  the  main,  very  little  better  financial  results  than 
those  carried  through  by  the  Metropolitan  Board  of 
Works.  The  council  seems  to  have  recouped  a  little 
over  half  of  the  gross  cost  of  the  undertakings,  but  as 
in  the  case  of  the  Metropolitan  Board's  improvements, 
the  data  available  regarding  these  projects  is  so  meager 
as  to  make  any  illuminating  analysis  of  it  impossi- 
ble.^* 

One  improvement  has  been  carried  through  in  London 

^3  The  reason  why  special  assessments  have  been  viewed  so  dif- 
ferently in  England  from  what  they  are  in  the  United  States  is  ex- 
plained by  Professor  Seligman.  "  What  appears  almost  self-evi- 
dent to  Americans  is  hotly  disputed  in  England.  In  the  United 
States  the  local  taxes,  so  far  as  real  estate  is  concerned,  are  im- 
posed on  the  owner  of  the  land;  in  England  the  local  rates,  as 
they  are  called,  are  levied  on  the  occupier.  In  the  United  States 
the  tax  is  assessed  on  all  lands ;  in  England  it  is  assessed  only  on 
productive  or  rent  yielding  land.  In  the  United  States,  therefore, 
it  was  comparatively  easy  to  add  to  the  existing  tax  on  the  pro- 
prietor this  newer  system  of  charges ;  in  England  the  process  is 
more  difficult,  because  it  implies  not  only  a  change  in  the  principle 
of  charge,  but  also  a  change  in  the  method  of  assessment.  Not  the 
occupier  but  the  owner  of  the  land,  is  to  be  directly  reached.  Thus 
the  proposal,  which  in  America  is  regarded  as  in  harmony  with 
vested  interests,  is  viewed  by  its  opponents  in  England  as  an  at 
tack  on  the  rights  of  private  property."    Essays  in  Taxation,  p.  434. 

''^  Tables  of  figures  showing  the  gross  cost  of  each  improvement 
and  the  estimated  or  actual  recoupment  were  published  by  the  Royal 
Commission  on  London  Traffic  in  1906,  Parliamentary  Papers, 
1906,  Vol.  xliii  pp.  110-113.  These  compilations  have  been  kept 
up  to  date  by  the  London  Traffic  Branch  of  the  Board  of  Trade. 
Parliamentary  Papers,  1908,  Vol.  xciii ;  idem,  1912-13,  Vol.  xxxix, 
Appendix  F-I;  idem,  1914,  Vol.  xli,  Appendix  F-G. 


RECOUPMENT  OR  PROFIT  171 

by  the  county  council  which  has  attracted  very  wide  at- 
tention and  which  it  is  possible  to  study  in  some  detail. 
Like  the  Northumberland  Avenue  project  it  is  used  by 
the  advocates  of  excess  condemnation  as  a  striking  ex- 
ample of  the  successful  working  of  that  scheme,  and 
unlike  the  Northumberland  Avenue  project  it  seems  to 
have  been  carried  through  with  a  high  degree  of  effi- 
ciency and  with  very  favorable  results.  The  improve- 
ment referred  to  is  the  construction  of  the  Kingsway, 
a  wide  thoroughfare  connecting  Holborn  and  the  Strand. 
It  is  commonly  referred  to  as  the  Holborn-to-the-Strand 
improvement.  A  description  of  this  undertaking  will 
cast  considerable  light  upon  how  the  system  of  excess 
condemnation  for  recoupment  has  worked  on  a  large 
scale  and  under  modern  conditions. 

There  had  long  been  a  demand  for  the  construction  of 
this  improvement.  Proposals  for  it  had  been  made  as  far 
back  as  1836  and  were  repeated  at  more  or  less  frequent 
intervals  especially  during  the  eighties  and  nineties.^^ 
The  bill  which  finally  provided  for  the  improvement  was 
passed  only  after  considerable  struggle.  It  involved  the 
largest  scheme  of  town  improvement  which  had  ever  been 
placed  before  Parliament  and  called  for  a  most  extensive 
use  of  the  principle  of  recoupment.  Nearly  forty  power- 
ful and  influential  companies  and  persons  appeared  as 
petitioners  against  the  bill  which  was  promoted  before 
Parliament  by  the  parliamentary  committee  of  the  Lon- 
don County  Council.  All  serious  opposition  was  finally 
quelled  and  the  bill  became  law  in  1899.^° 

One  or  two  of  the  provisions  of  this  act  are  worthy  of 
mention.     The  county  council  was  given  liberal  power 

f  5  Edwards,  History  of  London  Street  Improvements,  p.  '252. 
78  London  County  Council  (Improvements)  Act  1899,  62  and  63 
Vict.  Ch.  cclxvi ;  Special  Report  of  London  County  Council  under 


172  EXCESS  CONDEMNATION 

of  condemning  land  in  excess  of  what  it  actually  needed 
for  the  proposed  street.  Such  land  could  be  taken  to 
recoup  the  cost  of  the  undertaking,  to  protect  the  im- 
provement, and  to  secure  sites  for  rehousing  the  persons 
who  would  have  to  be  displaced.  The  land  thus  con- 
demned in  excess  could  be  sold  or  leased  at  any  time 
within  sixty  years,  and  such  resale  or  lease  could  be  made 
subject  to  such  protective  restrictions  as  to  the  use  of 
the  land  as  the  council  might  deem  it  wise  to  imposeJ^ 
All  persons  of  the  laboring  class  who  were  dishoused  in 
the  course  of  constructing  the  improvement  were  required 
to  be  suitably  rehoused  by  the  council  within  a  radius  of 
one  mile  from  their  previous  location.  And  finally,  a 
special  assessment  might  be  levied  upon  adjacent  bene- 
fited lands.  This  assessment  was  to  be  three  per  cent 
per  annum  upon  one-half  the  estimated  enhancement  in 
the  value  of  such  land.  The  benefited  property  was  to 
be  valued  before  the  improvement  was  made  and  after 
the  accretion  in  value  had  taken  place.  If  the  owner  was 
dissatisfied  with  the  amount  of  the  assessment  he  could 
compel  the  county  council  to  purchase  his  property  at  the 
figure  stipulated  in  the  initial  valuation. 

Clothed  with  these  powers  the  county  council  entered 
upon  the  gigantic  undertaking  of  carving  out  a  new  thor- 
oughfare in  the  heart  of  London.  The  street  itself  was 
about  three-fifths  of  a  mile  in  length  and  one  hundred 
feet  wide.  About  six  hundred  properties  were  acquired 
and  demolished,  involving  freehold,  leasehold  and  trade 
interests  to  the  number  of  nearly  fifteen  hundred.     Over 

title  of  Opening  of  Kingsway  and  /4Wwyc/i,  published  in  1905,  gives 
a  full  account  of  the  legislative  history  of  this  act  and  a  descrip- 
tion and  history  of  the  improvement  itself  as  it  was  finally  carried 
through.  The  report  was  written  by  Mr.  G.  L.  Gomme,  Clerk  of 
the  London  County  Council. 
''"'  Supra,  p.  i04flF. 


RECOUPMENT  OR  PROFIT  173 

six  thousand  persons  of  the  working  class  were  displaced 
and  had  to  be  rehoused.  The  project  involved  altogether 
an  area  of  about  twenty-eight  acres,  some  fifteen  of 
which  comprised  a  surplus  to  be  leased  or  sold  as  build- 
ing sites/^ 

Careful  estimates  were  made  of  the  gross  and  net  cost 
of  the  undertaking.  The  gross  expenditure  was  set  at 
£4,862,500.  Of  that  sum  £120,000  was  allowed  for  the 
actual  cost  of  the  work  done  and  materials  used,  and 
£300,000  for  the  purchase  of  sites  for  rehousing  per- 
sons who  would  be  displaced ;  the  remainder  would  cover 
the  cost  of  the  land  and  property  condemned  and  the 
damages  awarded.  The  council  estimated  that  it  would 
recover,  by  the  disposal  of  the  surplus  lands,  £4,088,300. 
The  net  cost  of  the  whole  project  upon  that  basis  would 
be  but  £774,200.^® 

Although  the  Holborn-to-the- Strand  improvement  was 
formally  opened  to  the  public  in  1905  and  the  process  of 
disposing  of  the  excess  property  has  been  going  on  ever 
since  1902,  it  is  still  impossible  to  state  with  much  accur- 
acy just  what  the  financial  outcome  of  the  whole  under- 
taking will  finally  be.  The  county  council  has  followed 
two  policies  in  regard  to  the  disposal  of  the  surplus  land. 
It  has  sold  part  of  it  outright  and  part  it  has  leased  for 
long  terms.  A  statement,  therefore,  as  to  the  amount 
of  the  recoupment  from  this  land  must  rest  on  an  esti- 
mate of  the  value  of  the  land  which  the  council  still 
owns.  It  will  be  many  years  before  the  books  can  really 
be  balanced  and  a  final  statement  made  of  the  actual  net 
cost  of  the  project.  By  1908,  the  gross  cost  of  the  whole 
improvement  had  run  up  to  £5,136,150;  then  it  was  still 
estimated   that  the   recoupment  would   be   sufficient   to 

^8  The  Opening  of  Kingsway  and  Aldwych,  op.  cit.,  p.  39. 
'8  London  Statistics,  1899-1900,  Vol.  x,  pp.  226-7. 


174  EXCESS  CONDEMNATION 

keep  the  net  cost  at  £774,200.*®  These  estimates  do  not, 
however,  make  any  allowance  for  interest  on  the  money 
which  was  borrowed  to  carry  through  the  work  and  these 
interest  charges  from  April  i,  1899,  to  March  31,  1907, 
had  already  mounted  up  to  £662,691.*^  It  would  seem 
that  for  this  reason,  delay  in  selling  the  surplus  land  will 
ultimately  result  in  a  very  substantial  increase  in  the  net 
cost  of  the  improvement. 

The  experience  of  the  London  County  Council  in  dis- 
posing of  the  surplus  land  which  it  had  taken  is  inter- 
esting in  showing  the  problems  which  are  attached  to 
the  administration  of  a  recoupment  project.  Great  diffi- 
culty was  experienced  at  first  in  getting  rid  of  this  land. 
In  1902,  1903  and  1904  the  council  held  public  auctions 
at  which  these  building  sites  were  offered  on  ninety-nine 
year  leases,  subject  to  certain  restrictions  upon  the  use 
to  which  the  land  might  be  put.  At  none  of  these  auc- 
tions was  any  land  let.  By  1907,  the  council  had  still 
on  its  hands  about  seventy  per  cent  of  the  surplus  land 
and  had  received  only  about  £300,000  from  outright 
sales.*^ 

These  results  seemed  somewhat  discouraging  and  the 
council,  feeling  that  something  must  be  done  to  make 
the  land  move  faster,  decided  to  modify  its  previous  pol- 
icy in  the  matter  of  disposing  of  the  surplus.  The  modi- 
fications made  were  three  in  number. 

In  the  first  place  the  council  decided  that  it  would  be 
expedient  to  pay  commissions  to  private  auctioneers,  sur- 
veyors and  other  real  estate  brokers  for  their  services  in 
securing  purchasers  and  tenants.     It  had  originally  been 

80  Idem,  Vol.  xix. 

81  Report  of  London  Traffic  Branch  of  the  Board  of  Trade, 
1908,  Parliamentary  Papers,  1908,  Vol.  xciii,  p.  9. 

^^  Annual  Report  of  Proceedings  of  London  County  Council^ 
year  ending  Mar.  31,  1908,  p.  164. 


RECOUPMENT  OR  PROFIT  175 

felt  that  the  council's  own  officers  ought  to  dispose  of 
the  land  but,  in  1906,  it  was  decided  to  expedite  matters 
by  soliciting  the  cooperation  of  private  interests.  An 
elaborate  scale  of  commissions  was  therefore  worked  out 
but  because  of  the  valuable  character  of  the  land  these 
rates  were  placed  at  a  rather  low  figure.*^  Private  real 
estate  firms  were  not,  therefore,  stimulated  by  these  low 
commissions  to  much  activity  in  helping  secure  buyers 
or  tenants  for  the  council's  land.  These  commissions 
were  accordingly  increased  in  1907,  until  they  were  sub- 
stantially the  same  as  the  rates  ordinarily  obtaining  in 
private  real  estate  transactions.^* 

Some  difference  of  opinion  was  discovered,  in  the  sec- 
ond place,  as  to  whether  the  council  was  asking  a  reason- 
able price  for  the  land  it  wished  to  sell.  Many  private 
valuers  and  surveyors  were  inclined  to  feel  that  the  price 
set  was  too  high.  After  due  consideration,  the  council 
decided  that  the  prices  in  question  were  reasonable  and 
were  fully  justified  by  the  rents  obtained  from  the  sites 
which  had  already  been  let.  It  did,  however,  decide  to 
adopt  temporarily  a  new  policy  in  regard  to  the  rents 
asked,  with  a  view  to  encouraging  prospective  tenants. 
Until  a  certain  number  of  sites  should  be  let  and  "  the 
commercial  character  of  the  thoroughfare  thoroughly 
established,"  it  provided  that,  "  lessees  should  be  allowed 
to  pay  the  first  year  a  peppercorn  rent,  the  second  year 
twenty-five  per  cent,  the  third  year  fifty  per  cent  and  the 
fourth  year  seventy-five  per  cent  of  the  ultimate  rental." 
It  was  felt  that  while  "  it  will  thus  be  five  years  before 
the  council  comes  into  the  enjoyment  of  the  full  rental 

^^  Annual  Report  of  Proceedings  of  London  County  Council, 
year  ending  Mar.  31,  1907,  p.  152. 

^*  Annual  Report  of  Proceedings  of  London  County  Council, 
year  ending  Mar.  31,  1908,  p.  164. 


176  EXCESS  CONDEMNATION 

of  such  sites,  it  will  sacrifice  nothing  of  the  ultimate  value 
of  the  land."  ^^ 

The  council  felt  constrained,  in  the  third  place,  to  mod- 
ify to  some  extent  the  restrictions  which  it  had  set  out 
to  impose  upon  the  future  use  of  the  land  it  was  putting 
on  the  market.  These  restrictions  had  been  more  bur- 
densome than  those  obtaining  in  private  estates  generally, 
and  prospective  buyers  or  lessees  were  reluctant  there- 
fore to  acquire  sites  which  were  subjected  to  these  rigor- 
ous building  conditions.  The  council  decided,  accordingly, 
to  change  these  restrictions  as  much  as  it  could  without 
disregarding  its  own  interests  in  the  adequate  protec- 
tion of  the  improvement.*® 

It  is  clear,  from  these  concessions  which  the  council 
made,  that  there  were  unforeseen  difficulties  involved  in 
the  disposal  of  the  excess  land  which  was  condemned. 
But  the  consensus  of  opinion  would  seem  to  be  that 
those  problems  have  been  met  on  the  whole  successfully, 
and  that  the  results  of  the  entire  Holborn-to-the-Strand 
improvement  will  ultimately  be  quite  satisfactory  to  the 
government  from  the  financial  standpoint. 

There  is  some  question,  however,  whether  it  is  fair  to 
assume  that  other  projects  which  might  be  undertaken 
would  work  out  with  as  little  difficulty  and  loss  as  this 
one. 

It  is  the  opinion  of  Mr.  Andrew  Young,  valuer  to 
the  London  County  Council  since  1889,  that  while  there 
might  be  areas  in  London  where  the  recoupment  on  an 
excess  condemnation  project  would  be  as  large,  there  are 
not  many.  This  is  due  to  the  fact  that  while  a  large 
portion  of  the  property  acquired  in  the  Holborn-to-the- 
Strand  improvement  was  not  of  much  value  in  itself,  the 

^^Idem,  p.  164. 

8«  Idem,  pp.  164-165. 


RECOUPMENT  OR  PROFIT  177 

sites  formed  by  the  construction  of  the  new  thoroughfare 
were  of  very  great  value  indeed.^^ 

There  is  Httle  disposition,  however,  to  abandon  the 
poHcy  of  recoupment  in  connection  with  pubHc  improve- 
ments in  London,  and  the  act  of  1914,  which  authorized 
the  construction  of  the  Mall  Approach,  confers  upon 
the  Westminster  City  Council  powers  of  excess  condem- 
nation almost  identical  with  those  under  which  the  Hol- 
born-to-the-Strand  project  was  carried  through. 

London  is  not  the  only  English  city  in  which  the  policy 
of  excess  condemnation  for  recoupment  has  been  put 
into  practice.  There  are  numerous  instances  of  its  use  in 
the  larger  industrial  and  commercial  centers  particularly, 
and  the  results  attained  vary  widely  from  place  to  place. 

In  Manchester,  the  financial  results  of  certain  early 
projects  of  excess  condemnation  were  rather  unfortunate 
for  the  city.  In  1894  Mr.  George  Clay,  Alderman  of 
Manchester  and  Chairman  of  the  Improvements  and 
Buildings  Committee  of  that  city,  testified  before  the  Se- 
lect Committee  of  the  House  of  Lords  on  Town  Improve- 
ments that  there  had  been  but  one  instance  in  which  the 
policy  of  recoupment  had  not  resulted  in  loss  to  the  city :  ** 

I  should  say  we  have  some  £300,000  worth  of  vacant  lands 
on  our  hands  at  the  present  time.  ...  I  may  say  Man- 
chester, with  regard  to  recoupment,  thought  they  were  wise 
in  their  time,  and  twenty  years  ago,  went  in  for  buying  more 
land  than  they  wanted  for  making  a  new  thoroughfare.  In 
1875  they  got  parliamentary  powers  to  do  that.  Where  the 
gross  expenditure  was  half  a  million  of  money,  the  receipts 
for  land  up  to  the  present  time  are  about  £113,000;  and  after 

*^  Report  of  Royal  Commission  on  London  Traffic  1906,  Parlia- 
mentary Pal>ers,  1906,  Vol.  xliii,  Questions  7233-7234. 

•*«  Alderman  George  Clay,  Report  of  Select  Committee,  op.  cit., 
Questions  783-795.  P-  55- 


178  EXCESS  CONDEMNATION 

taking  into  consideration  the  value  of  the  lands  that  are 
unsold,  at  the  present  selling  price  of  land,  we  have  sustained 
in  that  transaction  a  loss  of  about  £300,000,^" 

Land  values  seem  to  have  fallen  heavily  in  Manchester 
during  the  years  following  the  taking  of  large  areas  of 
excess  land,  and  the  city  found  itself  in  most  cases  un- 
able to  sell  at  all,  in  other  cases  unable  to  sell  at  a  figure 
high  enough  to  break  even  on  the  investment.  In  many 
cases  land  still  remained  unsold  for  twenty  or  twenty- 
five  years,  during  all  of  which  time  the  city  paid  interest 
on  the  purchase  price  of  the  land  without  receiving  any 
taxes  from  it. 

The  experience  of  the  city  of  Leeds  with  excess 
condemnation  'Jtands  in  striking  contrast  to  that  of  Man- 
chester. This  is  indicated  by  the  testimony  before  the 
select  committee  just  referred  to  of  Mr.  John  Barran, 
Member  of  Parliament  from  Leeds. 

The  principle  on  which  we  acted  in  street  improvements  in 
Leeds  was,  that  when  we  applied  for  our  act  of  Parliament 
we  invariably  took  a  pretty  wide  line  of  deviation  for  the  pur- 
pose, as  far  as  possible,  of  securing  property  on  the  line  of 
improvement  by  which  we  might  recoup  ourselves.  In  every 
instance  where  we  extended  our  operations  beyond  the  line 
needed  for  the  street  improvement,  I  think  I  may  say,  in 
every  instance,  we  found  that  by  purchasing  the  property  we 
were  enabled  to  make  the  improvement  at  a  very  much  less 
cost  than  we  should  have  done  if  we  had  taken  only  so  much 
of  the  buildings  as  were  necessary  for  the  purpose  of 
widening  the  streets.  There  were  several  instances  where 
nearly  the  whole  of  the  cost  was  recovered  by  the  resale  of 
the  property.^" 

All  of  the  surplus  land  taken  by  the  city  of  Leeds  was  sold 

89  Idem,  Question  786. 

»o  Report  of  Select  Committee,  op.  cit.,  Question  3561,  p.  278. 


RECOUPMENT  OR  PROFIT  179 

at  public  auction.  Mr.  Barran  attributes  no  small  part 
of  the  financial  success  of  these  projects  to  the  fact  that 
the  city  did  not  continue  to  hold  the  surplus  property 
for  a  long  period  of  years,  but  disposed  of  it  as  quickly 
as  possible.''^  Market  conditions  were  apparently  much 
more  favorable  in  Leeds  than  in  Manchester. 

No  attempt  has  been  made  in  these  pages  to  treat 
exhaustively  the  cases  in  which  cities  in  the  various  parts 
of  the  world  have  made  use  of  excess  condemnation  as 
a  means  of  making  or  saving  money.  The  projects 
which  have  been  described  are,  it  is  believed,  fairly 
typical.  They  indicate  under  how  many  different  cir- 
cumstances, in  how  many  different  ways  and  with  what 
different  results  cities  may  make  use  of  that  policy.  The 
facts  presented  will  not  support  any  dogmatic  or  cate- 
gorical statement  as  to  whether  or  not  excess  condemna- 
tion is  or  is  not  successful.  Success  or  failure  depends 
upon  a  wide  variety  of  factors.  It  has  been  seen  that 
in  some  cases,  as  in  the  Northumberland  Avenue  project 
in  London,  not  even  very  gross  dishonesty  and  malad- 
ministration on  the  part  of  the  public  authorities  could 
eat  up  all  the  profit  accruing  to  the  city  by  recoupment; 
while  in  other  cases,  as  in  the  upper  end  of  the  proposed 
Carnegie  Avenue  extension  in  Cleveland,  even  assuming 
one  hundred  per  cent  efficiency  and  good  business  judg- 
ment, the  city  could  not  fail  to  lose. 

Before  attempting  to  draw  any  conclusions  regarding 
the  value  of  excess  condemnation  as  a  financial  measure, 
before  attempting  to  weigh  it  in  comparison  with  the 
other  schemes  for  intercepting  the  increment  of  value 
created  by  public  improvements,  a  closer  analysis  must 
be  made  of  the  factors  which  actual  experience  has 
shown  will  tend  to  make  it  succeed  or  fail. 

»i  Idfttt  op.  cit.  Question  3592flf, 


CHAPTER  V 

FINANCIAL  GAINS   AND   RISKS   OF   EXCESS   CONDEMNATION 

When  a  city  employs  excess  condemnation  for  the 
purpose  of  controlling  remnants  of  land  or  of  protecting 
the  beauty  and  usefulness  of  a  boulevard  or  park,  its 
primary  motive  is  not  financial,  and  yet  nearly  always  it 
entertains  the  hope  that  it  will  make  some  profit  from 
the  resale  of  land  which  it  took  for  an  entirely  different 
purpose.  It  certainly  looks  with  great  concern  upon 
the  financial  aspects  of  the  undertaking,  and  if  the  excess 
land  cannot  be  disposed  of  at  an  actual  profit  it  is  felt 
that  it  must  at  least  bring  in  as  much  as  the  city  paid 
for  it.  When,  on  the  other  hand,  excess  condemnation 
is  employed  for  the  primary  purpose  of  making  money, 
the  financial  results  obtained  are  the  only  ones  that 
matter;  since  a  money  loss  to  the  city  would  not,  under 
such  a  policy,  be  offset  by  any  practical  or  esthetic  gain 
in  the  nature  of  a  wise  safe-guarding  of  the  attractive- 
ness and  convenience  of  public  improvements.  There  is, 
in  short,  no  project  of  excess  condemnation,  no  matter 
what  its  purpose  may  be,  in  which  the  financial  outcome 
of  the  undertaking  is  not  a  matter  of  deep  concern. 

The  foregoing  chapters  have  described  briefly  the 
leading  instances  in  which  excess  condemnation  has  any- 
where and  for  any  reason  been  put  into  practice.  In 
each  case  the  general  financial  result  of  the  project  has 
been  indicated.  Perhaps  the  most  definite  and  accurate 
conclusion  which  can  be  drawn  regarding  the  money- 

i8o 


FINANCIAL  GAINS  AND  RISKS  i8i 

making  power  of  excess  condemnation  is  that  sometimes 
it  is  financially  profitable  and  sometimes  it  is  not. 

It  is  proposed  in  the  present  chapter  to  enter  upon  a 
consideration  of  why  excess  condemnation  sometimes 
results  in  a  profit  and  sometimes  results  in  a  loss,  to 
indicate  the  factors  in  it  which  make  for  financial  gain 
and  the  risks  that  are  involved.  It  will  then  be  pos- 
sible, perhaps,  to  reach  more  definite  conclusions  as  to 
when  and  under  what  conditions  it  is  reasonable  to  expect 
that  excess  condemnation  will  really  serve  as  an  effective 
financial  policy.  The  occasional  repetition  of  facts  al- 
ready presented  will  doubtless  be  more  than  justified  by 
the  added  clarity  and  concreteness  which  they  give  the 
discussion. 

The  source  of  financial  gain  in  excess  condemnation 
projects  is,  of  course,  the  resale  or  leasing  of  the  land 
which  has  been  condemned  in  excess  of  the  actual  needs 
of  the  city. 

It  is  unnecessary,  at  this  point,  to  enter  into  any  elab- 
orate discussion  of  the  reasons  why  a  profit  may  accrue 
to  the  city  from  this  source.  It  proceeds  upon  the  as- 
sumption, first,  that  the  city  condemns  the  excess  land 
at  a  fair  price  approximating  its  real  value ;  second,  that 
the  construction  of  the  public  improvement  will  measur- 
ably increase  the  value  of  the  surplus  land  so  taken ;  and, 
third,  that  the  city  will  sell  or  lease  that  land  at  a  figure 
equal  to  that  increased  value. 

If  a  project  works  out  in  a  way  which  renders  any 
one  of  these  assumptions  false,  the  whole  undertaking 
may  result  in  serious  money  loss  to  the  city,  instead  of 
gain;  and  the  success,  therefore,  with  which  a  city  em- 
ploys excess  condemnation  will  depend  in  large  measure 
upon  the  extent  to  which  it  can  control  these  three  fac- 
tors.    Has  a  city  the  right  to  assume  that,  as  a  usual 


i82  EXCESS  CONDEMNATION 

thing,  it  can  so  govern  conditions  surrounding  the  con- 
struction of  a  public  improvement  as  to  acquire  excess 
land  at  its  real  value,  that  by  the  construction  of  the 
improvement  it  will  be  able  to  cause  that  value  to  rise, 
and  finally  that  it  M^ill  manage  to  dispose  of  the  land  in 
such  a  way  as  to  intercept  that  increment? 

In  the  first  place,  what  reason  is  there  to  believe  that 
the  city  can  secure  the  land  which  it  condemns  at  a 
reasonable  price?  The  main  reason  for  so  thinking  is, 
of  course,  that  the  city  has  powers  which  the  ordinary 
purchaser  does  not  have.  By  right  of  eminent  domain 
the  public  appropriates  land  over  the  protest  of  the  owner, 
and  pays  for  it  a  price  fixed  usually  by  some  jury,  com- 
mission or  other  disinterested  tribunal.  That  price  is 
supposed  to  represent  the  actual  value  of  the  property. 
In  theory,  at  least,  there  is  no  reason  why  the  city  should 
not  condemn  such  property  as  it  may  desire  at  the  fair 
market  value  of  that  property. 

At  a  later  point  the  success  or  failure  with  which 
our  cities  manage  to  condemn  land  at  a  fair  price  will 
be  discussed.  It  is  enough  to  state  here,  that  as  soon 
as  a  strong  public  sentiment  prevails  which  protests 
against  paying  the  owner  of  expropriated  property  more 
than  it  is  worth,  merely  because  it  is  the  public  which 
takes  it,  so  soon  will  American  municipalities  be  able  to 
enter  with  a  greater  degree  of  safety  upon  a  generous 
exercise  of  the  power  of  excess  condemnation.  Where 
such  a  sentiment  does  exist  that  policy  stands  shorn  of 
many  of  the  more  serious  objections  that  are  urged 
against  it.  When  a  city  can  condemn  land  at  a  fair  price, 
the  risk  involved  in  a  liberal  acquisition  of  land  is  re- 
duced to  a  minimum.  Cities  that  wish  to  use  excess  con- 
demnation without  danger  of  financial  loss  ought  there- 
fore to  stimulate  a  general  belief  amongst  their  citizens 


FINANCIAL  GAINS  AND  RISKS  183 

that  to  pay  a  man  more  for  his  property  than  it  is  worth 
is  just  as  bad  business  poUcy  for  the  city  as  it  is  for 
an  ordinary  business  man. 

While  it  is  true  that  the  amount  that  municipahties 
pay  for  land  taken  by  eminent  domain  is  governed  in 
large  measure  by  the  sentiment  of  the  community  as 
to  what  the  city  may  be  fairly  asked  to  pay,  certain  meas- 
ures have  been  adopted  or  proposed  in  various  places 
to  prevent  the  raids  on  the  public  treasury  which  fre- 
quently occur  when  land  is  condemned. 

In  England  the  city  may  be  given  the  power  to  deny 
compensation  for  any  improvement  constructed  on  pri- 
vate property  after  the  plan  of  a  public  work  has  been 
announced,  when  the  owner  had  full  knowledge  that  such 
improvements  would  have  to  be  condemned  and  paid  for 
and  purposely  constructed  them  with  a  view  to  secur- 
ing such  compensation  or  damages.  Under  the  act 
authorizing  the  Holbom-to-the-Strand  improvement,  it 
was  expressly  provided  that  the  London  County  Council 
was  to  pay  no  compensation  "  in  respect  of  any  improve- 
ment, alteration  or  building,  or  in  respect  of  any  interest 
in  lands  created  after  June  21,  1898,  if,  in  the  opinion  of 
the  court,  such  improvement  etc.  .  .  .  was  made  with 
a  view  of  obtaining  increased  compensation  under  this 
act."  ^  This  would  enable  a  city  to  protect  itself  against 
a  certain  type  of  imposition  which,  as  will  be  seen  later, 
is  common  enough.     It  would  pay  no  damages  not  fairly 

1  London  County  Council  (Improvements)  Act,  iSgg,  Part  II, 
Sec.  8,  Chs.  I,  2.  The  Mall  Approach  (Improvement)  Act,  al- 
ready referred  to  (supra  p.  loi,  note  25),  contained  a  similar 
clause.  See  also  Montreal  Charter,  Sec.  437 :  "  No  indemnity  or 
damage  shall  be  allowed  for  any  building,  structure  or  improve- 
ment upon  any  immovable,  after  notice  has  been  given  in  the 
council  of  the  resolution  for  the  purpose  of  such  expropriation, 
provided  that  such  shall  be  followed  by  proceedings  in  expropria- 
tion within  the  year." 
13 


i84  EXCESS  CONDEMNATION 

and  squarely  due  to  the  owner  whose  property  is  taken. 
Those  who  undertook  to  create  improvements  for  the 
sake  of  having  them  destroyed  and  paid  for  by  the  city 
would  have  their  trouble  for  their  pains.  For  reasons 
which  are  mentioned  later,^  however,  this  is  not  a  power 
which  most  of  our  American  state  constitutions  would 
permit  municipalities  in  this  country  to  exercise. 

The  city  can  further  take  great  care  that  in  paying 
for  property  taken  by  eminent  domain  for  a  public  im- 
provement it  does  not  include  in  the  amount  which  it 
pays  any  compensation  for  the  increase  in  the  value  of 
the  property  which  is  expected  to  result  from  the  im- 
provement. It  will  pay,  in  other  words,  for  just  what  it 
takes  and,  on  the  theory  that  a  man  cannot  lose  what  he 
never  had,  it  will  not  pay  for  a  value  an  owner  might 
have  had  if  he  had  been  left  in  undisturbed  possession 
of  his  property.  A  firm  stand  taken  by  the  city  upon 
this  point  will  help  to  withstand  the  onslaughts  of  those 
who  feel  that  the  city  ought  to  pay  them  for  their  prop- 
erty some  portion  at  least  of  the  increase  in  its  value  due 
to  the  public  work  created  by  the  city. 

A  suggestion  has  been  made  by  an  eminent  English 
authority  on  town  planning  which,  if  adopted,  might  help 
to  solve  the  problem  of  fixing  upon  a  fair  value  at  which 
to. pay  for  land  taken  by  eminent  domain.^  This  plan 
is  to  pay  an  owner  the  amount  of  the  value  which  he 
places  upon  his  property  for  purposes  of  taxation.  If 
he  overvalued  it  his  taxes  would  be  too  high ;  if  he  under- 
valued it  his  compensation,  in  case  the  city  took  the  land, 
would  be  too  low.  Motives  of  self-interest  would  lead 
him  to  place  a  fair  value  upon  it.  In  the  United  States, 
however,  property  owners  are  not  asked  to  value  their 

^  Infra,  p.  ipsff. 

3  Nettleford,  J.  S.,  Practical  Town  Planning,  p.  207. 


FINANCIAL  GAINS  AND  RISKS  185 

property  for  taxation,  and  there  is  a  serious  question 
whether  the  assessments  made  under  the  unique  and 
inadequate  system  prevailing  in  this  country  could  safely 
be  made  a  guide  for  the  awarding  of  compensation  in 
cases  of  eminent  domain.  The  owners  of  a  great  deal 
of  the  land  in  a  municipality  would  be  quite  safe,  further- 
more, in  assuming  that  their  land  would  never  be  taken 
by  the  city ;  while,  in  those  cases  where  a  public  improve- 
ment is  agitated  for  years,  the  owners  of  the  property 
affected  would  have  time  to  secure  an  increase  in  their 
assessments.  It  is  doubtful  if  the  plan  would  give  thor- 
oughly satisfactory  results. 

It  is  clear,  therefore,  that  a  city  is  not  entirely  helpless 
in  the  matter  of  fhe  price  which  it  will  pay  for  land  which 
it  condemns.  Whether  or  not  that  price  will  be  fair  and 
reasonable  will  depend  upon  the  vigor  and  sense  with 
which  the  city  controls  the  process  of  awarding  compen- 
sation, and  that  in  turn  depends  in  the  last  analysis  in 
very  large  measure  upon  the  degree  to  which  the  citizens 
who  own  property  are  willing,  as  a  general  rule,  to  meet 
the  city  halfway.  If  public  sentiment  is  not  interested  in 
protecting  the  public  treasury  there  is  little  likelihood  that 
it  will  be  adequately  protected.  But  in  any  case  ex- 
perience and  a  knowledge  of  local  conditions  will  enable 
alert  city  officials  to  determine,  before  entering  upon  an 
extensive  project  of  excess  condemnation,  whether  or 
not  the  cost  of  acquiring  the  land  involved  will  be  so 
high  as  seriously  to  reduce  the  expected  recoupment. 

The  financial  effectiveness  of  excess  condemnation,  as 
was  suggested,  depends  in  the  second  place  upon  the 
amount  of  the  actual  accretion  in  the  value  of  the  sur- 
plus land  taken  by  the  city.  The  city  must  assume  that 
such  an  increase  in  land  values  will  be  caused  by  the 
public  improvement  ijj  contemplation.     Otherwise  there 


i86  EXCESS  CONDEMNATION 

would  be  no  shadow  of  an  excuse  for  its  condemning 
for  recoupment  land  in  excess  of  its  ordinary  needs. 

To  say  that  ihe  creation  of  a  valuable  public  work,  a 
street  or  park  or  bridge,  does  raise  the  value  of  the  neigh- 
boring property  seems  almost  a  truism.  The  whole  sys- 
tem of  special  assessments  proceeds  upon  the  assump- 
tion that  the  property  abutting  a  public  improvement  is 
measurably  benefited  thereby.  In  fact,  if  a  man  can 
show  that  his  property  is  not  benefited,  he  will  be  re- 
lieved by  the  courts  of  the  necessity  of  paying  an  assess- 
ment.* The  fact  that  special  assessments  are  levied  in 
almost  every  American  city  to  pay  in  part  for  almost 
every  street  improvement  is  evidence,  therefore,  of  the 
fact  that  public  works  do  increase  the  value  of  the  sur- 
rounding property. 

If  further  proof  of  this  fact  were  needed,  it  would 
be  found  by  examining  the  successive  appraisals  of  prop- 
erty appearing  upon  the  city  tax  assessment  lists.  Such 
a  study  will  indicate  that  in  general,  when  costly  public 
improvements  are  made,  the  value  of  the  nearby  prop- 
erty is  definitely  increased  for  purposes  of  taxation.  In 
fact,  it  is  generally  understood  that  this  increase  of  the 
neighboring  real  estate  values  will  bring  into  the  city 
treasury  in  a  few  years,  in  the  form  of  increased  taxes, 
an  amount  sufficient  to  pay  the  cost  of  the  improvement 
and  sometimes  pay  for  it  several  times  over.  Mr.  Nelson 
P.  Lewis,  Chief  Engineer  of  the  Board  of  Estimate  and 
Apportionment  of  the  city  of  New  York,  is  authority  for 
the  statement  that,  "  during  the  sixteen  years  following 
the  laying  out  of  Central  Park,  the  average  increase  in 
the  assessed  value  of  real  estate  in  other  parts  of  New 

*This  is  a  theoretical  rather  than  an  actual  protection  for  the 
most  part,  since  no  standards  of  evidence  exist  in  practice  by  which 
a  man  may  support  his  claims. 


FINANCIAL  GAINS  AND  RISKS  187 

York  City  was  about  one  hundred  per  cent,  while  in  the 
three  wards  then  adjoining  the  new  park  the  increase 
was  approximately  eight  hundred  per  cent."  ° 

The  increase  in  the  value  of  land  adjoining  a  public 
work  is  not  so  inevitable,  however,  as  to  free  a  city 
which  contemplates  using  excess  condemnation  of  the 
necessity  of  using  foresight  and  caution.  At  a  later 
point  it  will  be  seen  that  the  expected  accretion  in  real 
estate  values  does  not  always  follow  the  completion  of 
a  public  improvement,  even  though  that  improvement  be 
in  itself  of  great  public  benefit.  A  city,  therefore,  must 
take  into  consideration  whether  conditions  are  such  that 
the  project  in  connection  with  which  it  proposes  to  con- 
demn land  in  excess  will  actually  raise  land  values  nearby 
to  an  appreciable  degree. 

It  is  not  always  possible  to  state  in  advance  just  what 
the  effect  of  a  public  improvement  will  be  in  this  direc- 
tion. For  this  reason  every  excess  condemnation  project 
is  to  a  certain  extent  a  speculative  venture.  It  is  specu- 
lative beyond  the  power  of  the  city  to  regulate  and  con- 
trol the  results.  There  are,  however,  certain  condi- 
tions under  which  public  improvements  will  increase  the 
value  of  neighboring  lands  with  a  fair  degree  of  cer- 
tainty. By  making  sure  that  those  conditions  exist,  a 
municipality  can  enter  upon  an  application  of  the  excess 
condemnation  principle  with  a  minimum  of  risk  regard- 
ing the  expected  accretion  in  the  value  of  the  surplus 
land. 

When,  for  example,  new  and  desirable  building  sites 
are  made  available  in  a  portion  of  a  city  already  con- 
gested, there  is  little  question  that  the  area  comprising 
those  sites  is  much  more  valuable  than  before.     It  was 

"*  Quoted  from  a  public  address  in  24th  Annual  Report  of  City 
Parks  Association  of  Philadelphia, 


i88  EXCESS  CONDEMNATION 

quite  possible  to  foresee  with  certainty  that  such  a  result 
would  follow  the  opening  of  that  portion  of  the  Car- 
negie Avenue  extension,  earlier  discussed,  which  lies  near 
the  business  center  of  Cleveland.®  This  street  opening 
would  place  upon  the  market  new  frontages  and  corner 
sites  in  a  section  where  they  were  sorely  needed.  It 
seems  certain  that  this  property  abutting  the  new  street, 
which  it  was  proposed  the  city  should  acquire,  would  be 
many  times  more  valuable  after  the  improvement  was 
completed  than  it  was  before.  The  same  was  true  of 
the  new  plots  opened  up  by  the  Holborn-to-the-Strand 
improvement,  the  Montreal  street  extensions,  as  well  as 
many  other  public  works  already  mentioned.  The  open- 
ing, for  instance,  of  a  park  or  boulevard  will  stimulate 
a  demand  for  the  adjoining  property  because  people 
will  wish  to  build  residences  in  so  attractive  a  place.  If 
the  city  should  construct  a  bridge  or  docks  or  wharves  or 
other  terminal  transportation  facilities,  land  would  im- 
mediately become  highly  desirable  for  various  industrial 
or  commercial  purposes.  The  city  in  all  these  cases  is 
creating  an  improvement  near  which,  by  its  very  nature, 
people  wish  to  be.  It  may  feel  fairly  certain  that  land 
which  it  may  condemn  adjoining  improvements  of  this 
kind  will  undergo  a  marked  increase  in  value. 

There  are  circumstances,  furthermore,  under  which 
almost  any  public  work  will  raise  property  values  in  the 
vicinity.  These  are  times  of  prosperity  when  the  real 
estate  market  is  vigorous  and  the  community  is  growing 
steadily.  The  demand  for  attractive  and  convenient 
building  sites  is  apt  to  be  greater  than  the  supply,  and 
land  values  are  quick  to  respond  to  the  influence  of  any 
improvement  which  renders  available  the  building  sites 
needed  by  the  growing  community.     When  these  favor- 

6  Supra,  p.  141. 


FINANCIAL  GAINS  AND  RISKS  189 

able  conditions  prevail,  it  is  most  unlikely  that  a  munici- 
pality would  find  that  land  which  it  had  taken  by  excess 
condemnation  when  constructing  a  public  improvement, 
did  not  grow  to  be  worth  a  good  deal  more  than  its  orig- 
inal value. 

It  is  quite  true  that  these  conditions  may  not  be  the 
only  ones  under  which  public  improvements  will  cause 
neighboring  land  values  to  rise.  Land  values  are  some- 
what erratic  and  will  sometimes  soar  or  fall  when  least 
expected  or  when  such  a  result  has  been  in  serious  doubt. 
But  when  a  city  enters  upon  an  excess  condemnation 
project,  and  realizes  that  it  will  lose  money  if  the  hoped 
for  accretion  in  property  values  does  not  materialize,  it 
ought  to  be  unwilling  to  take  doubtful  risks.  It  is  quite 
possible,  however,  to  determine  with  a  fair  amount  of 
accuracy  whether  any  or  all  of  the  conditions  out- 
lined actually  exist.  If  they  do  exist,  the  city  may  feel 
reasonably  sure  that  the  land  adjoining  the  proposed  im- 
provement will  increase  in  value  to  such  an  extent  as  to 
render  fairly  certain  the  profitable  resale  of  the  excess 
area  condemned. 

If  a  municipality  succeeds  in  condemning  in  excess  at 
a  fair  price  an  area  of  land  whose  value  is  substantially 
enhanced  by  the  creation  of  a  public  improvement,  it 
must  still  dispose  of  that  land.  It  must  dispose  of  it, 
furthermore,  at  a  price  representing  its  new  and  in- 
creased  value. 

Here,  again,  the  city  may  not  always  be  able  to  foresee 
with  definiteness  the  precise  outcome  of  a  given  project. 
By  right  of  eminent  domain  it  may  compel  a  man  to  sell 
his  property  at  a  fair  price ;  there  is  no  power  by  which 
it  may  compel  a  man  to  buy.  In  entering  upon  an  excess 
condemnation  project  a  municipality  always  assumes  in 
Spme  degree  the  risk  of  not  being  able  to  find  purchasers 


I90  EXCESS  CONDEMNATION 

who  will  buy  its  excess  land  at  a  figure  representing  its 
real  value. 

When  the  city,  however,  by  creating  a  public  improve- 
ment, actually  increases  the  value  of  such  surplus  lands 
as  it  has  condemned,  there  must  be  at  least  a  potential 
demand  for  the  property  at  the  higher  figure  placed  upon 
it.  Ordinarily  such  a  potential  demand  is  found  to 
be  an  actual  demand,  if  reasonable  care  is  taken  to 
make  known  the  desire  of  the  city  to  dispose  of  the 
land. 

By  offering  such  lots  at  public  auction  or  by  asking 
for  bids  upon  them,  the  city  can  readily  discover  the  con- 
dition of  the  market.  If  the  offers  received  are  not  as 
high  as  the  value  which  the  city  has  placed  upon  the 
property,  one  of  two  inferences  may  be  drawn.  Either 
conditions  generally  are  unfavorable  for  a  sale  or-  the 
city  has  overvalued  the  land.  In  normally  favorable 
circumstances,  however,  the  city  may  reasonably  hope  to 
find  buyers  who  will  be  willing  to  pay  a  fair  market  price 
for  such  excess  land.  If  a  municipality  can  condemn 
land  at  a  reasonable  price,  and  produce  by  its  own  enter- 
prise an  increase  in  the  value  of  that  land,  it  need  not, 
as  a  general  rule,  regard  as  very  serious  the  risk  of  fail- 
ing to  find  purchasers  for  the  land  at  its  new  or  enhanced 
value. 

From  this  discussion  of  the  factors  which  make  for 
financial  success  in"  projects  of  excess  condemnation,  the 
whole  scheme  seems  perhaps  to  be  easy  enough  of  effec- 
tive manipulation.  The  same  degree  of  business  effi- 
ciency which  makes  for  the  satisfactory  management  of 
the  other  affairs  of  the  city  would  seem  to  promise  the 
most  favorable  outcome  of  such  excess  condemnation 
undertakings  as  the  city  might  enter  upon.  But  all  is 
not  so  simple,    A  careful  study  of  the  instances  in  which 


FINANCIAL  GAINS  AND  RISKS  191 

this  policy  has  been  put  into  practice  indicates  that  its 
actual  operation  is  attended  by  risks  which  are  neither 
few  nor  insignificant.  It  is  safe  to  say  that  scarcely  a 
single  project  of  excess  condemnation  has  been  carried 
out  in  which  the  city  has  not  found  itself  confronted 
sooner  or  later  by  unforeseen  difficulties  imperiling,  in 
greater  or  less  degree,  the  financial  success  of  the  under- 
taking. No  examination  of  the  financial  aspects  of  ex- 
cess condemnation  can  be  complete  which  does  not  take 
into  account  these  difficulties,  and  does  not  set  over 
against  the  probabilities  of  financial  success,  the  heavy 
cost  of  the  enterprise  and  the  risk  of  money  loss. 

In  the  first  place,  an  application  of  the  principle  of 
excess  condemnation  involves  a  serious  financial  risk 
because  it  almost  invariably  necessitates  a  large  expendi- 
ture of  money  or  outlay  of  credit.  There  is  no  uncer- 
tainty about  this ;  the  land  condemned  in  excess  must  be 
paid  for  and  paid  for  promptly.  Even  under  the  most 
favorable  conditions  by  far  the  largest  portion  of  the 
money  which  the  city  receives  when  it  resells  the  surplus 
property  must  go  to  reimburse  the  public  treasury  for  ex- 
penditures already  made.  Every  excess  condemnation 
project  calls  for  a  heavy  initial  investment  of  the  city's 
money. 

Naturally  the  mere  size  of  an  investment  does  not 
necessarily  increase  the  risk  of  loss  any  more  than  it 
does  the  chance  of  gain.  The  more  money  a  city  spends 
in  condemning  excess  land,  however,  the  more  imperative 
it  is  that  the  undertaking  shall  turn  out  favorably. 
When,  therefore,  the  city  undertakes  a  project  involving 
the  outlay  of  several  million  dollars,  every  risk  and  leak- 
age and  slipshod  method  of  administration  becomes 
fraught  with  unwonted  danger. 

Of  vastly  greater  importance  than  the  mere  amount 


192  EXCESS  CONDEMNATION 

of  the  cost  of  condemning  excess  land  is  the  relation 
which  that  cost  bears  to  the  probable  return  from  the 
resale  of  that  land.  Any  factors,  therefore,  which  tend 
to  increase  the  initial  expenditure  of  money  by  the  city 
without  at  the  same  time  increasing  the  amount  which 
may  be  recovered  into  the  public  treasury,  constitute 
risks  too  serious  for  the  city  to  ignore.  There  are  sev- 
eral conditions  under  which  cities  are  likely  to  find  the 
outlay  of  capital  or  credit  required  for  an  excess  con- 
demnation project  increased  without  any  proportionate 
gain  in  the  expected  recoupment. 

A  municipality  may,  for  example,  undertake  to  con- 
demn land  in  excess  in  a  portion  of  the  city  where  land 
values  are  already  exceedingly  high.  This  is  likely  to 
be  the  case  when  a  street  is  widened  in  a  crowded  dis- 
trict. The  need  of  widening  in  itself  usually  bespeaks 
an  intensive  use  of  the  land.  Any  surplus  which  the  city 
condemns  in  connection  with  such  a  project  it  must 
therefore  pay  for  at  congestion  prices.  Land  values  may 
already  be  so  high  as  to  be  well-nigh  beyond  the  influ- 
ence of  such  a  public  improvement  to  raise  them  greatly. 
It  is  exceedingly  doubtful  whether  the  widening  of  many 
of  the  narrow  crosstown  business  streets  of  lower  Man- 
hattan would  have  any  appreciable  effect  in  enhancing 
the  already  enormous  values  of  the  abutting  property. 
In  attempting  to  use  excess  condemnation  as  a  means  of 
financing  improvements  of  this  general  character  a  city 
would  be  making  the  maximum  outlay  of  capital  or 
credit  with  a  minimum  opportunity  for  recoupment. 
There  are  some  students  of  the  problem  who  believe, 
for  this  reason,  that  excess  condemnation  cannot  wisely 
be  utilized  as  a  financial  measure  in  connection  with 
costly  improvements  in  the  built-up  and  congested  sec- 
tions of  the  cit^. 


FINANCIAL  GAINS  AND  RISKS  193 

A  second  factor  which  tends  to  increase  the  cost  of 
condemning  land  in  excess  without  increasing  Hkewise 
the  price  at  which  the  city  can  sell  such  land  is  the  prac- 
tice almost  universally  prevalent  of  paying  for  land 
taken  by  eminent  domain  more  than  its  fair  value. 
While  it  has  already  been  indicated  that  it  lies  in  the 
city's  power  to  mitigate  some  of  the  abuses  of  this  kind 
which  are  continually  taking  place,  the  only  real  remedy 
for  the  evil  lies  in  the  educating  of  public  opinion. 
Theoretically,  in  the  eye  of  the  law,  the  city  pays  a  fair 
price  for  the  land  it  condemns ;  actually  it  pays  a  good 
deal  more.  Those  who  have  in  charge  the  planning  of 
excess  condemnation  projects  will  do  well  to  recognize 
that  there  is  always  a  danger  that  the  estimated  profits  of 
the  undertaking  will  be  eaten  into  by  the  lavish  awards 
made  by  condemnation  juries  and  arbitors. 

There  seems  to  be  a  general  sentiment  in  almost 
every  community  in  favor  of  the  payment  of  a  very 
liberal  price  for  what  the  city  takes  from  a  citizen.  There 
is  no  one  who  has  a  direct  pecuniary  interest  in  making 
sure  that  the  city  pays  no^  more  than  it  should.  In  Eng- 
land, the  custom  grew  up  of  paying  the  owner  of  prop- 
erty which  the  public  needed  in  a  project  of  recoupment, 
not  only  the  liberal  award  made  by  the  land  jury,  an 
amount  usually  well  above  the  price  the  land  could  bring 
in  open  market,  but  also  an  additional  ten  per  cent.  This 
bonus  was  supposed  to  compensate  the  owner  for  being 
compulsorily  dispossessed  of  his  land.  It  was  never 
recognized  by  law.  The  result  of  the  practice  was,  of 
course,  a  rather  serious  reduction  in  the  amount  of  profit 
which  the  public  authority  was  able  to  make  by  the  sale 
of  the  surplus  land.''  Mr.  Meyer,  in  his  report  already 
referred  to  on  the  operation  of  excess  condemnation  in 

■f  Mass.  House  Doc.  228  (1904),  p.  65. 


194  EXCESS  CONDEMNATION 

Paris,^  states  that  the  excessive  awards  made  by  juries 
were  the  main  cause  of  the  Grovernment's  inabiUty  to 
recoup.  He  cites  case  after  case  in  which  the  careful 
estimates  of  the  profit  to  be  made  by  the  city  were  shat- 
tered by  the  extravagant  prices  paid  for  the  land  con- 
demned. The  city  entered,  for  instance,  upon  the  con- 
struction of  the  Bourse  de  Commerce  in  the  belief  that 
the  compensations  for  the  land  proposed  to  be  taken 
would  be  $5,000,000.  The  amount  actually  awarded 
amounted  finally  to  $8,000,000.^  It  is  useless  to  dupli- 
cate examples  of  this  practice  of  over-paying  for  private 
property  taken  by  eminent  domain.  Few  indeed  are  the 
European  or  American  municipalities  which  could  not 
from  their  own  experience  contribute  to  such  a  list. 
And  in  so  far  as  cities  allow  themselves  to  pay  more 
than  a  fair  price  for  property  which  they  condemn  in 
excess,  just  so  far  do  they  imperil  the  financial  success 
of  their  recoupment  ventures. 

The  fact  that  public  authorities  do  as  a  rule  pay  fancy 
prices  for  the  property  they  take  by  eminent  domain  is 
perhaps  responsible  for  a  practice  which  constitutes  a 
third  means  of  running  up  the  cost  of  excess  condemna- 
tion without  adding  to  the  returns.  This  is  the  practice 
of  creating  improvements  or  property  interests  for  the 
sole  purpose  of  making  the  city  condemn  them.  The  city 
of  Paris,  in  making  compensation  to  the  tenant  of  ex- 
propriated property  as  well  as  the  owner,  found  fre- 
quently, according  to  the  statement  of  a  member  of  the 
Municipal  Council,  that,  "  when  it  became  known  that 
the  public  authorities  were  going  to  take  property  for 

^Municipal  Real  Estate  Operations  in  Connection  with  Street 
Improvements  in  Paris,  London  and  the  Provincial  Towns  of 
England,  Mass.  House  Doc.  288,  pp.  53-101. 

»  Meyer,  op.  cit.,  p.  60,  quoting  from  L'Economiste  Frangais, 
Sept.  10,  1887. 


FINANCIAL  GAINS  AND  RISKS  195 

public  use,  owner  and  tenant  frequently  conspired  to 
bleed  the  public.  On  the  eve  of  the  official  announce- 
ment of  the  proposed  taking  of  land,  leases  were  made 
for  an  e3ccessive  length  of  time,  and  on  the  basis  of  a 
rental  which  exceeded  the  current  rate  by  100,  150  or 
200  per  cent."  ^"  Quite  as  frequent  is  the  practice  of 
putting  up  cheap  buildings  or  making  other  physical  im- 
provements on  land  which  the  public  authorities  have 
announced  they  will  condemn."  The  engineer  of  the 
city  of  Worcester,  Massachusetts,  writes  for  instance, 
in  regard  to  the  excess  condemnation  venture  entered 
upon  in  that  city,^^  "  We  found  with  relation  to  Belmont 
Street,  that  no  sooner  had  it  been  noised  about  that  the 
city  purposed  to  widen  the  street  than  the  erection  of 
buildings  began  immediately  within  the  area  proposed 
to  be  taken,  and  largely  for  the  purpose  of  damages."  " 
It  has  been  suggested  above  that  in  England  and  Can- 
ada there  is  available  a  means  of  correcting  this  abuse. 
Authority  has  been  given  to  the  city  of  London  and 
the  city  of  Montreal  to  refuse  to  pay  damages  for  the 
destruction  of  such  improvements,  structures  or  prop- 
erty interests  as  may  have  been  created  in  order  to 
secure  indemnity.^*  It  is  questionable  whether  an  Ameri- 
can city  could  refuse  to  pay  damages  in  such  a  case. 
The  law  of  eminent  domain  in  this  country  jealously 
guards  the  property  owner  against  loss,  and  it  is  hard 
to  see  how  the  constitutional  prohibition  against  taking 
private  property  for  public  use  without  just  compensa- 
tion could  be  construed  in  such  a  way  as  to  relieve  the 

10  Meyer,  op.  cit.,  p.  61,  quoting  from  L'Economiste,  Aug.  23, 
1890. 
"  Supra,  p.  183. 
12  Supra,  p.  135. 

18  Letter  to  the  author,  dated  August  5,  1916. 
1*  Supra,  p.  183. 


196  EXCESS  CONDEMNATION 

city  of  the  necessity  of  paying  damages  for  property 
taken  or  destroyed,  even  if  such  property  was  dehber- 
ately  created  in  order  to  make  the  city  condemn  it. 
American  municipahties  may,  perhaps,  be  able  to  im- 
prove their  system  of  condemnation  proceedings  so  as  to 
reduce  to  a  minimum  the  time  between  the  announce- 
ment of  a  plan  of  improvement  and  the  actual  taking  of 
the  land.  This  would  help  to  render  impossible  the  crea- 
tion of  any  very  valuable  improvements  during  that 
period.  Unless  this  can  be  done,  however,  the  cities  of 
this  country  must  count  as  one  of  the  financial  risks  of 
excess  condemnation  the  possibility  of  having  to  pay 
heavy  damages  on  property  created  for  the  express  pur- 
pose of  having  it  destroyed  and  paid  for.^^ 

The  cities  of  England  and  France  find  the  net  cost 
of  using  the  excess  condemnation  increased,  or  the  net 
profit  reduced,  by  reason  of  heavy  charges  from  which 
American  cities  are  exempt.  These  charges  are  the  pay- 
ments which  are  made  to  indemnify  owners  or  tenants 
for  the  destruction  of  trade  interests  or  the  goodwill  of 
their  business.     In  other  words,  the  city  not  only  pays 

15  There  seems  to  be  no  pronouncement  by  an  American  court 
upon  this  precise  point.  In  several  states,  however,  statutes  have 
been  enacted  permitting  the  creation  and  announcement  of  an 
official  street  layout  and  refusing  damages  for  the  destruction  of 
any  building  or  improvement  subsequently  constructed  within  the 
lines  of  any  such  officially  plotted  streets.  With  the  exception  of 
Pennsylvania,  such  a  refusal  to  pay  damages  has  been  held  uncon- 
stitutional in  every  state  where  the  question  has  arisen,  on  the 
ground  that  it  permits  the  taking  of  private  property  for  public 
use  without  just  compensation.  It  is  hard  to  see  any  vital  distinc- 
tion between  these  acts  and  the  laws  under  discussion  above,  which 
deny  damages  for  the  destruction  of  buildings,  improvements  or 
property  rights  deliberately  created  after  the  announcement  of  a 
plan  for  public  improvement  for  the  purpose  of  securing  such 
damages.  Lewis,  Eminent  Domain,  3rd  Ed.,  Sec.  226;  Nichols, 
Eminent  Domain,  Sec.  42. 


FINANCIAL  GAINS  AND  RISKS  197 

the  owner  a  fair  price,  and  frequently  much  more,  for 
such  property  as  it  needs  to  condemn,  but  it  also  pays  the 
man  who  has  been  carrying  on  business  on  the  premises 
for  the  injury  he  sustains  by  reason  of  having  to  move, 
and  for  the  loss,  if  he  is  merely  a  tenant,  of  his  leasehold 
rights. 

The  experience  of  English  cities  in  particular  in  the 
payment  of  these  so-called  trade  compensations  indicates 
first  that  they  are  usually  exceedingly  large,  and  second 
that  the  juries  awarding  them  follow  the  usual  extrava- 
gant policy  of  giving  the  claimant  a  good  deal  more  than 
he  ought  to  have.  In  fact  the  practice  very  generally 
prevails  of  paying  for  the  total  destruction  of  the  good- 
will of  a  merchant's  business,  even  when  the  goodwill 
is  but  slightly  impaired.^^  The  testimony  presented  be- 
fore the  Select  Committee  of  the  House  of  Lords  on 
Town  Improvements  (Betterment),  in  1894,  was  almost 
unanimous  that  the  various  recoupment  projects  under- 
taken in  London,  Manchester  and  Liverpool  up  to  that 
time  had  failed  to  result  as  profitably  as  had  been  ex- 
pected because  of  the  high  cost  of  acquiring  these  trade 
interests.^^  The  belief  seems  also  to  prevail  that  the 
Northumberland  Avenue  and  Holborn-to-the-Strand 
improvements  resulted  more  profitably  than  was  usually 
the  case,  because  in  neither  instance  was  it  necessary  to 
condemn  valuable  trade  interests.^*    The  final  conclusion 

^^  Mass.  House  Doc.  288,  p.  72. 

17  Report  of  Select  Committee  of  the  House  of  Lords,  Ques- 
tion 1384,  p.  109,  Testimony  of  Mr.  Charles  Harrison,  Vice-chair- 
man of  the  London  County  Council ;  Question  783-795,  p.  55,  Tes- 
timony of  Mr.  George  Clay,  Alderman  of  the  city  of  Manchester; 
Question  3546,  p.  277,  Testimony  of  Mr.  H.  E.  Clare,  Deputy  Town 
Clerk  of  Liverpool ;  Question  213,  Testimony  of  Mr.  H.  L.  Cripps, 
Parliamentary  Agent  for  the  London  County  Council. 

18  Edwards,  History  of  London  Street  Improvements,  p.  11, 
Report  of  the  London  Traffic  Branch  of  thg  Board  of  Trade, 


198  EXCESS  CONDEMNATION 

of  the  select  committee  regarding  recoupment  was,  as 
already  stated,^®  that  it  seemed  never  to  have  been  tried 
"  under  circumstances  calculated  to  make  it  successful, 
inasmuch  as  no  sufficient  power  has  ever  yet  been  given 
to  local  authorities  to  become  possessed  of  the  improved 
properties  without  buying  out  all  the  trade  interests,  a 
course  which  is  inevitably  attended  with  wasteful  and 
extravagant  expenditure."  ^°  In  1906,  Mr.  Andrew 
Young,  Valuer  to  the  London  County  Council,  expressed 
himself  as  being  "  clearly  of  the  opinion  that  the  only 
economical  method  of  carrying  out  street  improvements 
in  London  is  by  laying  out  the  projected  new  streets  in 
such  a  way  that  it  would  not  be  necessary  to  acquire  a 
large  proportion  of  valuable  property  occupied  for  busi- 
ness purposes."  ^^ 

Obviously  when  a  city  pays  for  these  trade  interests 
it  buys  something  which  it  cannot  resell.  It  does  not  pay 
for  value  received  but  for  value  destroyed.  The  neces- 
sity of  making  these  heavy  expenditures  for  trade  com- 
pensations has  long  been  a  matter  of  great  concern  to 
those  authorities  who  have  faced  that  necessity  in 
connection  with  recoupment  projects.  One  of  the 
arguments  advanced  by  the  Prefect  of  the  Seine  for 
farming  out  the  power  of  excess  condemnation,  in  the 
manner   already   described   in   connection   with   one   or 

Parliamentary  Papers,  1908,  Vol.  xciii,  p.  9;  Report  of  Select 
Committee,  op.  cit..  Questions  344-348,  p.  27,  Testimony  of  Mr. 
Cripps,  Member  of  the  Metropolitan  Board  of  Works  and  Parlia- 
mentary Agent  of  London  County  Council ;  Report  of  Royal  Com- 
mission on  London  Traffic,  Parliamentary  Papers,  1906,  Vol.  xliii, 
Testimony  of  Mr.  Andrew  Young,  Valuer  to  London  County 
Council,  Questions  7233-7234. 
13  Supra,  p.  167. 

20  Report  of  Select  Committee,  op.  cit.,  pp.  iii-iv. 

21  Report  of  Royal  Commission  on  London  Traffic,  op.  cit..  Vol. 
xli.  Appendix  No.  12,  pp.  315-318. 


FINANCIAL  GAINS  AND  RISKS  199 

two  French  projects,^^  was  that  a  private  contractor, 
being  able  to  agree  to  reinstate  a  dispossessed 
owner  in  a  site  near  his  former  location,  would 
avoid  paying  heavy  indemnity  for  the  destruction 
of  goodwill.^^  In  England,  two  plans  have  been  sug- 
gested to  reduce  this  heavy  burden  of  expense. 
One  is  the  policy  of  taking  by  eminent  domain  only 
the  fee  to  the  land  or  the  long  leasehold  interests,  and 
allowing  the  occupants  holding  short-time  leases  to  re- 
main undisturbed  until  those  leases  expired.  This  would 
be  of  some,  help  but  would  save  the  payment  of  only 
part  of  the  trade  compensations.  It  would  not,  however, 
apply  at  all  to  occupant  owners.  It  would  place  the  pub- 
lic authority,  furthermore,  under  the  necessity  of  delay- 
ing the  work  of  improvement  until  these  short-time  leases 
expired.  Although  this  policy  has  been  followed  in 
some  instances,  it  has  never  been  put  into  general  prac- 
tice.^* A  method  more  recently  employed  for  keeping 
these  trade  compensations  down  is  the  entering  into 
agreements  with  those  holding  the  most  valuable  trade 
interests,  to  reinstate  them  nearby  on  a  site  practically 
as  desirable  as  the  one  they  originally  possessed.  In  con- 
nection with  the  construction  of  the  approach  to  the  Mall, 
for  instance,  a  private  owner  was  given  an  option  on  the 
land  taken  from  him,  which  was  in  excess  of  the  city's 
actual  needs,  unless  it  should  be  required  for  a  public 

22  Supra,  p.  ISO. 

23  Robinson,  City  Planning,  p.  262,  note. 

2*  In  1897,  the  county  council  acquired  the  freehold  in  a  large 
block  of  buildings  between  Southampton  Row  and  Kingsgate 
Street.  The  leases  in  these  buildings  had  but  five  years  to  run, 
and  the  county  council,  by  leaving  them  undisturbed  and  thereby 
avoiding  the  payment  for  the  trade  interests,  was  able  to  put 
through  its  improvement  at  about  half  the  amount  it  would  other- 
wise have  paid.  Edwards,  History  of  London  Street  Improve- 
ments, p.  173. 
14 


200  EXCESS  CONDEMNATION 

purpose.  As  consideration  for  this  option  the  owner 
waived  all  claim  to  compensation  for  destruction  of  trade 
interests.  In  due  time  he  exercised  this  option  and  pur- 
chased back  part  of  his  former  holdings  together  with 
some  adjoining  parcels.  When  it  became  necessary  later 
to  displace  him  from  this  site,  the  authorities  entered  into 
another  agreement  to  reinstate  him  on  a  nearby  site  which 
they  condemned.  Thus  no  expenditure  was  made  for 
trade  compensation  and  a  large  amount  of  money  saved 
to  the  taxpayers.  The  last  reinstatement  mentioned  was 
bitterly  fought  by  the  former  owner  of  the  reinstatement 
site.  The  select  committee  approved  the  county  council's 
action,  however.^' 

The  power  given  the  local  authorities  in  connection 
with  several  recent  projects  of  improvement  not  only 
to  sell  or  lease  land  condemned  in  excess  but  also  to 
exchange  it,  gives  some  opportunity,  at  least,  to  reduce 
these  heavy  damages  to  trade  interests. 

The  financial  results  of  excess  condemnation  are  im- 
periled not  only  by  those  influences  which  tend  dispro- 
portionately to  increase  the  cost  of  acquiring  the  excess 
property,  but  also  by  the  burden  of  heavy  fixed  charges. 
These  are  expenditures  which  eat  into  the  expected  profit 
from  the  undertaking  with  relentless  certainty,  and  they 
are  expenditures  which  mean  just  so  much  net  loss  to  the 
city. 

The  fixed  charges  incidental  to  excess  condemnation 
projects  are,  of  course,  interest  charges.  A  municipality 
almost  invariably  resorts  to  an  issue  of  bonds  in  order 

25  A  full  account  of  this  interesting  case  will  be  found  in  the 
Report  of  the  Select  Committee  of  the  House  of  Commons  on 
the  Mall  Approach  Improvement  Bill,  Parliamentary  Papers. 
IQ14,  Vol.  viii.  At  the  time  of  writing  it  is  not  known  whether 
the  scheme  was  finally  carried  through,  although  the  bill  was 
passed  by  Parliament. 


FINANCIAL  GAINS  AND  RISKS  201 

to  get  any  public  improvement  started.  There  are  many 
instances  in  which  the  interest  on  the  money  thus  bor- 
rowed constitutes  a  fairly  unimportant  item  of  expense. 
This  is  the  case  when  the  interest  rate  is  low  and  when 
the  city  quickly  sells  the  surplus  land  at  a  price  which 
enables  it  to  liquidate  the  loan  at  once  or  to  make  a  sinking 
fund  investment  which  will  carry  the  annual  interest 
charges.  But  when  the  interest  rate  is  high  or  when  the 
city  finds  it  necessary  for  any  reason  to  retain  posses- 
sion of  the  excess  land  for  a  long  time,  these  annual  pay- 
ments will  act  as  a  severe  and  steady  drain  upon  the 
amount  of  the  profit  which  the  city  can  hope  to  make 
when  it  does  dispose  of  that  land. 

This  is  a  point  which  scarcely  needs  illustration.  It 
has  already  been  suggested  that  the  interest  charges  on 
the  capital  investment  in  the  Holborn-to-the-Strand 
project  were  very  high.  The  London  Traffic  Branch  of 
the  Board  of  Trade  declared  in  1908,  that  in  estimating 
the  net  cost  of  this  improvement  at  £774,200,  the  London 
County  Council  "  have  not  considered  the  effect  of  delay 
which  may  occur  in  the  disposal  of  the  surplus  land,  nor 
has  allowance  been  made  for  interest  on  the  outlay.  The 
net  charges  for  interest  from  the  ist  April,  1899,  to  31st 
March,  1907,  amounted  to  £662,691."^°  The  discourag- 
ing losses  which  the  city  of  Manchester  suffered  in  its 
recoupment  ventures  were  aggravated  by  the  fact  that 
the  city  was  obliged  to  pay  heavy  interest  on  its  land 
investments  for  a  long  period  of  time.  Mr.  George  Clay, 
Alderman  of  the  city  of  Manchester  and  for  ten  years 
Chairman  of  the  Improvements  and  Buildings  Committee 
there,  declared  in  speaking  of  these  projects,  "  There  is 
nothing  which  eats  its  head  off  so  much  as  land  does  if 

26  Report  of  London  Traffic  Branch  of  the  Board  of  Trade, 
Parliamentary  Papers,  1908,  Vol.  xciii,  p.  9. 


202  EXCESS  CONDEMNATION 

you  keep  it  long  enough."  He  estimated  that  the  in- 
terest payments  had  practically  doubled  the  loss  which 
the  city  sustained  by  reason  of  its  taking  the  excess 
land." 

A  third  loss  which  a  municipality  sustains  in  using 
excess  condemnation  is  the  loss  of  taxes  on  the  land 
which  it  appropriates.  As  in  the  case  of  interest  charges, 
this  loss  will  not  prove  to  be  serious  unless  the  value  of 
the  land  is  high  and  the  period  of  tax-exemption  pro- 
tracted. If  a  city  is  sufficiently  enterprising,  it  may  be 
able  to  use  the  land  it  has  taken  in  excess  of  actual  needs 
in  such  way  as  to  derive  some  income  from  it.  Unless 
it  definitely  contemplates  holding  the  land  for  a  period 
of  years,  however,  a  city  is  not  likely  to  put  it  to  any 
temporarily  profitable  use.  The  loss  of  taxes  must, 
therefore,  in  most  cases  be  added  to  the  other  fixed 
charges  as  a  steadily  accumulating  net  loss. 

Those  financial  risks  attendant  upon  the  operation  of 
excess  condemnation,  which  have  just  been  discussed, 
have  been  risks  arising  out  of  the  increases  of  the  gross 
cost  of  the  undertaking.  They  are  capable,  to  some  ex- 
tent at  least,  of  being  foreseen  and  provided  for  and,  if 
careful  study  indicates  that  they  will  be  burdensome, 
the  city  has  still  time  to  refuse  to  embark  upon  such  a 
venture.  Since  they  are  not  accurately  measurable,  but 
are  inclined  to  fluctuate  unexpectedly,  they  must  still  be 
regarded  as  risks,  and,  as  experience  has  shown,  risks  of 
no  slight  moment.  They  cannot,  however,  be  regarded 
as  highly  speculative  risks,  in  the  sense  that  they  are 
governed  by  circumstances  largely  beyond  the  control  of 
the  public  authorities  promoting  the  scheme. 

2''  Report  of  Select  Committee  of  the  House  of  Lords  on  Town 
Improvements  (Betterment),  1894,  Parliamentary  Papers,  1894, 
Vol.  XV,  Questions  783-795. 


FINANCIAL  GAINS  AND  RISKS  203 

There  is,  however,  a  fourth  group  of  financial  risks  inci- 
dent to  the  condemnation  of  land  in  excess  which  are  in  a 
large  degree  speculative  in  character.  These  all  group 
themselves  around  the  possibility  that  the  city  may  not  be 
able  to  dispose  of  the  surplus  land  it  has  taken,  in  such 
a  way  as  to  recover  the  amounts  expended  in  acquiring 
and  improving  that  land.  The  expected  increase  in  the 
value  of  the  surplus  property  may  not  take  place  at  all ; 
or  it  may  be  so  long  a  time  in  making  itself  felt  that 
before  the  city  has  secured  the  accretion  in  value,  the 
interest  charges  and  loss  of  taxes  will  have  wiped  out  any 
net  profit  otherwise  possible.  There  are  a  number  of 
causes  which  may  contribute  to  the  postponement  or 
total  failure  of  the  hoped  for  rise  in  the  value  of  such 
land. 

In  the  first  place,  there  may  be  a  general  and  persis- 
tent depression  of  the  real  estate  values.  Increases  in 
land  values,  as  a  general  rule,  depend  upon  a  stimulation 
of  business  or  an  increase  in  population  sufficient  to  cre- 
ate a  demand  for  new  sites  or  new  uses  for  old  sites. 
Such  a  stimulation  may  not  take  place;  and  instead  of 
rapid  and  steady  development,  a  city  or  a  section  of  a 
city  may  merely  stagnate.  Testimony  offered  before  the 
Select  Committee  of  the  House  of  Lords  on  Town  Im- 
provements indicated  that  this  stagnation  occurred  in 
Manchester,  and  was  responsible  for  the  heavy  losses 
which,  it  has  been  seen,  resulted  from  the  recoupment 
ventures  entered  upon  by  that  city  some  thirty-five  or 
forty  years  ago.^^  In  that  case,  after  the  pubhc  author- 
ities had  condemned  several  zones  of  excess  land,  the 
values,  so  far  from  rising,  attually  fell;  and  at  the  end 

28  op.  cit.,  Testimony  of  Mr.  Theodore  Sington,  Questions  2810- 
2819,  p.  215 ;  Testimony  of  Mr.  Bridgford,  Questions  3042-3047, 
p.  236. 


204  EXCESS  CONDEMNATION 

of  a  period  of  twenty  years,  the  corporation  found  itself 
in  possession  of  property  valued  at  less  than  the  amount 
at  which  it  was  purchased,  and  for  which,  even  at  that 
lower  rate,  there  seemed  to  be  no  demand.  Improve- 
ments of  very  great  value  to  the  community  as  a  whole 
seemed  to  be  powerless  to  prevent  a  general  shrinking 
in  the  value  of  the  surrounding  property.  It  was  the 
opinion  of  the  witnesses  describing  these  circumstances 
that  it  was  entirely  impossible  to  foresee  this  depression 
in  land  values  at  the  time  of  entering  upon  the  projects 
involved.  It  is,  of  course,  easy  to  say  that  conditions 
such  as  these  are  exceptional  and  could  not  seriously  be 
expected  to  occur  in  the  average  American  city.  This 
is  probably  true.  One  may  well  bear  in  mind,  however, 
the  collapse  of  the  real  estate  market  in  some  of  the 
"  mushroom "  towns  in  our  western  states.  In  New 
England  there  are,  to-day,  towns  and  cities  which  do  not 
have  the  population  and  prosperity  which  they  enjoyed 
in  the  days  of  the  Revolution.  In  some  of  the  most 
rapidly  growing  cities,  the  business  centers  have  shifted, 
sometimes  with  startling  rapidity,  leaving  behind  a  dis- 
trict in  which  land  is  worth  a  good  deal  less  to-day  than 
it  was  ten  years  ago.^°  The  chance  is  not  wholly  neg- 
ligible that  a  municipality  may  suffer  unexpected  loss 
in  an  excess  condemnation  project  because  general  busi- 
ness conditions  either  prevent  any  accretion  or  cause  a 
shrinking  in  the  value  of  the  surplus  land  it  holds. 

While  this  stagnation  or  depression  in  land  values  may 
be  permanent  in  some  cases,  there  are,  in  the  second  place, 

29  This  is  what  has  happened  on  Manhattan.  The  business 
center,  located  ten  or  fifteen  years  ago  in  the  Twenty-third  Street 
district,  has  moved  uptown  to  the  Thirties  and  Forties,  and  the  de- 
pression in  land  values  in  the  abandoned  section  has  been  very 
marked.  This  tendency  would  be  checked  by  an  adequate  system 
of  zones  for  residential  and  business  purposes. 


FINANCIAL  GAINS  AND  RISKS  205 

other  instances  in  which  it  is  temporary,  and  where  the 
loss  sustained  arises  chiefly  from  the  unforeseen  pro- 
longation of  the  period  during  which  the  city  must  carry 
interest  charges  and  suffer  the  loss  of  taxes.  There  are 
frequent  cases  in  which  cities  have  been  obliged  to  wait 
a  considerable  length  of  time  before  making  a  profitable 
sale  of  the  land  they  have  taken.  This  seemed  to  be  the 
general  experience  of  the  cities  of  Belgium.  "The  city 
officials  of  Brussels  state  that  in  case  of  any  great  pub- 
lic improvement,  either  the  construction  of  a  new  thor- 
oughfare or  the  remodeling  of  a  section  of  the  city,  a 
period  of  eight  years  or  more  must  elapse  before  the 
people  adapt  themselves  to  the  new  conditions,  and  the 
city  and  the  property  owners  there  receive  the  benefit 
expected  from  the  change.  They  seem  to  attribute  this 
to  the  slowness  of  their  people,  the  sluggish  Flemish  tem- 
perament, etc.,  yet  the  experience  of  London  and  Paris 
furnishes  many  instances  of  exactly  the  same  results,  so 
that  it  may  well  be  accepted  as  a  fundamental  rule  in 
such  matters."  ^°  The  city  of  Montreal  has  met  with 
conspicuous  success  in  disposing  quickly  and  profitably 
of  lands  condemned  in  excess.^^  In  1913,  however,  the 
construction  of  St.  Joseph  Boulevard  was  undertaken, 
at  a  cost  for  land  condemnation  of  $2,500,000.  Five 
hundred  and  fifty-six  thousand  out  of  a  total  area  of 
794,000  square  feet  are  to  be  resold  for  recoupment. 
The  chairman  of  the  Board  of  Assessors  states  that, 
"  owing  to  the  disturbed  condition  of  the  real  estate  mar- 
ket, as  the  result  of  the  war  in  which  we  are  engaged, 
it  has  been  thought  advisable  not  to  attempt  to  sell  the 
residues  until  such  time  as  the  market  assumes  a  normal 
condition  ...  so  that  the  loss  of  interest  and  taxes  will 

3f  Edmund  M.  Parker.    Mass.  House  Doc.  1096  (1904). 
81  Supra,  p.  i43flF. 


2o6  EXCESS  CONDEMNATION 

make  a  serious  inroad  into  any  prospective  profit." 
"  This,  however,"  he  adds,  "  may  be  considered  acci- 
dental, as  the  result  of  abnormal  conditions."  ^^  It  is 
safe  to  say  that  any  policy  or  circumstance  which  post- 
pones the  time  at  which  a  city  can  sell  profitably  the 
excess  property  it  has  taken,  constitutes  a  serious  menace 
to  the  financial  success  of  the  whole  project. 

There  is  still  another  reason  why  the  hoped  for  in- 
crease in  the  value  of  the  property  which  a  city  has  con- 
demned in  excess  may  never  take  place,  or  may  arrive 
too  late  to  prevent  serious  financial  loss.  It  is  quite  pos- 
sible to  construct  a  costly  public  improvement  of  utmost 
value  to  the  community  at  large,  which  does  not  measur- 
ably increase  the  value  of  the  adjoining  land.  The  clear- 
est example  of  such  an  improvement  of  this  kind  is  the 
through  traffic  thoroughfare,  opened  perhaps  through  a 
residential  district,  for  the  purpose  of  putting  two  busi- 
ness districts  into  easier  connection  with  each  other. 
Those  who  are  actually  benefited  by  such  an  improve- 
ment are  not  the  residents  whose  lots  abut  the  thorough- 
fare, but  the  property  owners  at  either  end,  whose  places 
of  business  are  made  accessible.  This  was  clearly  shown 
in  the  case  of  a  bridge  constructed,  some  sixty  years  ago, 
in  the  city  of  Manchester.^^  This  bridge  across  the 
River  Irk  gave,  to  an  important  suburb  of  Manchester, 
direct  and  easy  access  to  the  business  center  of  the  city, 
the  Exchange  and  the  railway  stations.  The  property 
through  which  the  approaches  to  the  bridge  had  to  be 
cut  was  very  old.  Although  an  enormous  amount  of 
through  traffic  passed  over  the  new  highway,  the  con- 

82  Mr.  J.  Hamilton  Ferns,  Chairman,  Board  of  Assessors,  in 
letters  to  the  author  dated  24th  February  and  llth  March,  1916. 

83  Described  in  the  testimony  of  Mr.  Theodore  Sington,  before 
the  Select  Committee  of  the  House  of  Lords,  op.  cit..  Question 
2819,  p.  217. 


FINANCIAL  GAINS  AND  RISKS  207 

struction  of  the  improvement  had  no  apparent  effect 
upon  the  value  of  this  property.  Forty,  years  saw  it  in 
the  same  condition  in  which  it  was  when  the  bridge  was 
built  and  without  a  single  new  building  upon  it.  This  is 
precisely  the  result  which,  it  was  seen  above,  was  predicted 
as  the  outcome  of  the  opening  of  one  end  of  the  Car- 
negie Avenue  ^*  extension  proposed  in  Cleveland.  It 
was  estimated  that  the  use  of  excess  condemnation  in 
connection  with  the  opening  of  the  thoroughfare  from 
East  Eighty-ninth  Street  to  East  One  Hundredth  Street 
would  mean  a  net  loss  to  the  city.  The  improvement 
itself  would  be  of  great  public  value.  It  would  bring 
an  outlying  district  within  reach  of  the  business  center 
of  Cleveland,  and  would  also  relieve  congestion  of  traf- 
fic on  some  of  the  other  arterial  thoroughfares.  But  it 
could  not  be  expected  to  cause  any  marked  increase 
in  land  values  in  the  pleasant  residential  district  through 
which  it  passed.  This  was  not  the  district  which  would 
be  benefited,  and  such  measure  of  enhancement  in  the 
value  of  the  abutting  property  as  might  actually  take 
place  would  be  insufficient  to  prevent  a  loss  should  the 
city  venture  upon  a  policy  of  excess  condemnation.^^  It 
is  apparent,  therefore,  that  the  promoters  of  excess  con- 
demnation projects  who  proceed  upon  the  assumption 
that  every  public  improvement  will,  under  normally 
favorable  conditions,  bring  about  a  striking  increase  in 
the  value  of  the  immediately  abutting  property,  are  neg- 
lecting a  consideration  which  may  be  of  most  vital  im- 
portance to  the  financial  success  of  the  undertaking. 
It  is  interesting  to  note  that  the  character  of  the  re- 

8*  Supra,  p.  I38ff. 

85  Report  on  Proposed  Carnegie  Avenue  Extensions,  published 
by  Manufacturers'  Appraisal  Company,  Cleveland,  Ohio,  1913, 
pp.  5-6;  also  letter  of  Mr.  Walter  W.  Pollock,  President  of  the 
above  company,  to  the  author,  under  date  of  May  22,  1915. 


2o8  EXCESS  CONDEMNATION 

strictions  which  the  pubHc  authorities  place  upon  excess 
land,  when  they  sell  it,  may  tend  to  reduce  its  market 
value.  Ordinarily,  one  thinks  of  restricted  property  as 
being  especially  desirable.  When  a  city,  however,  im- 
poses restrictions  which  are  exceedingly  onerous  or  when 
it  prevents  the  future  owner  from  putting  the  land  to 
its  most  profitable  use,  those  restrictions  operate  to  re- 
duce the  value  of  the  land  and  may  jeopardize  the  suc- 
cess of  the  excess  condemnation  project  in  connection 
with  which  they  were  imposed.  English  cities  have  fre- 
quently found  themselves  involved  in  this  difficulty  by 
reason  of  the  requirement  that  persons  of  the  working 
class  who  are  displaced  by  the  construction  of  a  public 
improvement  must  be  rehoused  within  a  short  distance 
of  their  former  location.  This  means  that  a  certain  por- 
tion of  the  excess  land  which  the  city  has  taken  must 
either  be  used  directly  for  rehousing  workmen  or  must  be 
sold  subject  to  the  restriction  that  workmen's  dwellings 
be  erected  upon  it.  Mr.  Andrew  Young,  Valuer  to  the 
London  County  Council,  declares  that  when  "  sites  are 
offered  for  sale  subject  to  the  restriction  that  dwellings 
for  the  working  classes  must  be  erected  upon  them,  the 
price  realized  is  only  a  portion  of  the  commercial  value 
of  the  land."  ^^  As  proof  of  this  he  cited  the  case 
of  the  Holborn-to-the-Strand  improvement.  The  county 
council  was  required  by  act  of  Parliament  to  rehouse  the 
workmen  displaced  within  a  mile  of  their  former  sites. 
In  order  to  provide  homes  for  2640  such  persons,  an  area 
of  139,400  square  feet  was  purchased  at  its  market  value 
as  commercial  land,  at  a  cost  of  £200,000.  Mr.  Young 
testified  that  "  subject  to  the  restrictions  as  to  the  class 
of  buildings  to  be  erected  upon  it,  the  utmost  price  that 

3^  Report  of  Royal  Commission  on  London  Traffic,  1906,  Parlia- 
mentary Papers,  Vol.  xliii,  Questions  7166-7168,  p.  267. 


FINANCIAL  GAINS  AND  RISKS  209 

could  be  given  for  it  is,  in  my  opinion,  £44,000,  so  that  a 
loss  was  sustained  on  this  transaction  of  £156,000."^^ 
The  superintending  architect  of  metropolitan  buildings, 
discussing  the  same  situation,  advanced  the  belief  that, 
had  the  county  council  been  permitted  to  rehouse  the 
people  displaced  in  a  suitable  district  beyond  the  one 
mile  limit,  the  rehousing  could  have  been  done  at  five- 
eighths  of  the  cost  of  the  land  on  which  they  were  placed 
and  at  much  lower  rents.^*  American  cities  are  under 
neither  the  requirement  nor  the  temptation  to  impose 
restrictions  of  this  kind  upon  the  future  use  of  land 
which  they  may  condemn  in  excess.  Other  types  of  re- 
strictions, however,  will  sometimes  operate  in  the  same 
way.  It  has  already  been  suggested  that  the  London 
County  Council  imposed  upon  the  sites  fronting  upon 
the  Holborn-to-the-Strand  improvement  limitations  as 
to  character  and  architectural  design  of  the  building 
which  might  be  erected,  which  were  so  onerous  that  it 
was  unable  to  find  buyers  or  lessees  for  those  sites  until 
those  restrictions  had  been  modified.^^  It  may  be  said, 
in  short,  that  any  restriction  which  places  the  purchaser 
of  a  piece  of  land  under  the  necessity  of  using  it  for  a 
purpose  or  in  a  way  less  profitable  than  would  otherwise 
be  possible,  will  automatically  reduce  pro  tanto  the  mar- 
ket value  of  that  land,  and  it  may  drive  away  all  pur- 
chasers. Cities  contemplating  the  resale,  under  building 
conditions  and  restrictions,  of  land  condemned  in  ex- 
cess, will  need  to  consider  in  making  their  financial  cal- 
culations the  efi^ect  which  those  restrictions  will  have 
upon  the  market  for  that  land. 

87  Idem,  Question  7176,  p.  267. 

38  Idem,  Testimony  of  W.  E.  Riley,  Question  7085.  pp.  264-265. 

39  Supra,  p.  104.     See  Annual  Report  of  Proceedings  of  London 
County  Council,  1908,  pp.  164-165. 


2IO  EXCESS  CONDEMNATION 

Perhaps  the  discussion  of  risks  imperilling  the  financial 
results  of  excess  condemnation  would  not  be  complete 
without  mentioning  the  danger  of  loss  arising  from  the 
maladministration  or  the  inefficient  administration  of  the 
system. 

There  is  no  intention  of  suggesting  that  political  cor- 
ruption and  dishonesty  are  among  the  necessary  risks  of 
carrying  through  a  public  improvement  project  in  the 
same  sense  in  which  some  of  these  other  dangers  consti- 
tute necessary  risks.  They  are  risks  incident  to  excess 
condemnation  in  the  same  sense  in  which  the  cashier's 
embezzlement  is  a  risk  of  the  banking  business.  They 
may  occur  most  infrequently  but  when  they  do  occur 
their  results  may  be  disastrous.  It  must  be  recognized, 
furthermore,  that  the  administration  of  an  excess  con- 
demnation project  presents  a  vast  number  of  opportuni- 
ties to  the  public  officer  for  corrupt  dealing.  It  has  al- 
ready been  noted  that  the  practices  of  the  Metropolitan 
Board  of  Works  in  London  finally  became  almost  a  public 
scandal  and  led  to  the  appointment,  in  1888,  of  a  royal 
commission  to  investigate  the  workings  of  that  body. 
The  facts  brought  before  that  body  indicate  some  of  the 
ways  in  which  a  city  promoting  an  excess  condemnation 
venture  may  be  fleeced  by  dishonest  and  ingenious  pub- 
lic officials.*" 

<°  Interim  Report  of  the  Royal  Commissioners  Appointed  to  In- 
quire into  Certain  Matters  Connected  with  the  Working  of  the  Met- 
ropolitan Board  of  Works,  Parliamentary  Papers,  1888,  Vol.  Ivi. 

It  was  the  belief  of  Mr.  Arthur  A.  Baumann  that  the  indifferent 
success  of  recoupment  in  connection  with  London  improvements 
was  due  to  the  dishonest  manner  in  which  it  was  administered. 
He  repudiated  the  view  of  other  students  of  the  question  that 
recoupment  would  fail  because  of  the  heavy  cost  of  acquiring 
trade  interests.  Betterment,  Worsement  and  Recoupment,  pp. 
loo-ioi ;  Testimony  before  the  Select  Committee  of  the  House  of 
Lords,  op.  cit..  Question  2662-2707,  pp.  204-207. 


FINANCIAL  GAINS  AND  RISKS  211 

In  the  long  run,  however,  it  is  probable  that  ineffi- 
ciency is  a  far  greater  menace  to  the  success  of  projects 
of  recoupment  than  is  dishonesty,  and  this  must  be  added 
to  the  list  of  financial  risks  incident  to  that  policy.  Most 
of  the  dangers  already  suggested  would  be  very  severely 
aggravated  if  the  officials  responsible  for  carrying  out 
excess  condemnation  projects  were  deficient  in  fore- 
sight and  general  business  ability.  It  is  unnecessary  to 
enumerate  the  various  ways  in  which  a  municipality 
may  lose  money  as  a  result  of  blunders  and  poor  manage- 
ment in  such  undertakings.  It  is  safe  to  say,  however, 
that  no  city,  no  matter  how  efficiently  governed,  can  ever 
entirely  free  itself  from  the  risk  of  such  losses. 

It  may  as  well  be  admitted  that  the  danger  of  inef- 
ficient management  is  probably  more  acute  in  the  United 
States  than  in  most  of  the  cities  of  Europe.  The  aver- 
age American  municipality  elects  less  able  officials  than 
does  the  European  city;  it  elects  them  frequently  for 
partisan  considerations  quite  remote  from  the  problems 
of  administration  with  which  they  must  deal ;  and  it  fre- 
quently turns  them  out  of  office  as  soon  as  their  expe- 
rience and  their  understanding  of  their  duties  have  begun 
to  ripen.  The  cities  in  Europe  and  in  Canada,  further- 
more, are  not  free  from  the  restraining  influence  of  a 
central  administrative  authority  in  their  excess  con- 
demnation as  well  as  their  other  undertakings.  Whether 
or  not  one  is  disposed  to  approve  of  such  limitations  upon 
freedom  of  municipal  action,  there  is  some  reason  to  be- 
lieve that  ill-advised  projects  are  less  likely  to  be  ap- 
proved by  two  separate  sets  of  authorities  than  by  one, 
and  that  consequently  such  a  check  exercised  by  a  central 
authority  appreciably  reduces  the  likelihood  that  cities 
will  embark  upon  rash  and  dangerous  excess  condemna- 
t;ion  projects.    American  cities,  in  short,  cannot  aflford  to 


212  EXCESS  CONDEMNATION 

ignore  the  fact  that  their  present  standards  of  admini- 
strative efficiency  constitute  in  themselves  no  insignifi- 
cant menace  to  the  financial  results  of  the  policy  of  con- 
demning land  in  excess. 

Such,  then,  are  the  financial  risks  incident  to  the  oper- 
ation of  excess  condemnation.  They  have  been  set  forth 
in  some  detail,  not  in  a  spirit  of  excessive  caution  nor  in 
the  belief  that  they  are  all  imminent  dangers.  Some  of 
these  dangers  might  never  arise  in  an  American  city; 
it  is  conceivable,  though  not  probable,  that  none  of  them 
might  arise.  Some  projects  could  not  be  rendered  un- 
profitable to  the  city  even  by  gross  abuse  and  mismanage- 
ment. In  other  instances,  the  wisest  of  direction  could 
not  protect  the  public  treasury  from  loss.  One  cannot 
get  away  from  the  fact  that,  even  under  the  most  favor- 
able circumstances,  the  financial  outcome  of  an  excess 
condemnation  undertaking  will  be  surrounded  by  con- 
siderable uncertainty. 

The  preceding  chapter  was  devoted  to  an  examination 
of  excess  condemnation  as  it  has  actually  been  applied  for 
purposes  of  recoupment,  and  the  present  chapter  has 
discussed  somewhat  critically  the  factors  in  such  an  en- 
enterprise  which  make  for  gain  or  loss.  It  is  appro- 
priate, therefore,  to  venture  certain  conclusions  as  to  the 
desirability  of  adopting  the  policy  of  excess  condemnation 
in  American  cities  as  a  method  of  financing  public  im- 
provements. 

The  first  conclusion  is  that  the  risk  of  loss  in  an  ex- 
cess condemnation  project  is  too  serious  to  warrant  its 
adoption  as  a  method  of  municipal  finance.  If  a  city  has 
no  motive  for  condemning  surplus  land  other  than  the 
wish  to  intercept  the  increment  of  value  which  it  hopes, 
by  the  construction  of  a  public  work,  to  create  in  that 
J.and,  it  would  do  better  to  secure  that  accretion  in  value 


FINANCIAL  GAINS  AND  RISKS  213 

by  less  heroic  and  more  reliable  methods.  It  is  probable 
that  a  system  of  increment  taxes  could  be  developed, 
whereby  the  purely  financial  advantages  ascribed  to  a 
system  of  excess  condemnation  could  all  be  secured  with- 
out subjecting  the  public  treasury  to  any  risk  of  loss.  It 
is  certainly  a  sound  principle  of  public  finance  that  a 
municipality  should  not  incur  a  risk,  however  slight,  for 
the  purpose  of  achieving  an  end  which  may  be  accom- 
plished equally  well  with  entire  safety. 

A  second  conclusion  is  that  the  financial  risks  incident 
to  excess  condemnation  are  not  so  dangerous  as  to  render 
unwise  the  use  of  that  policy  for  the  purpose  of  con- 
trolling remnants  of  land  or  protecting  public  improve- 
ments. It  has  been  seen  that  excess  condemnation  is  the 
only  way  in  which  those  purposes  can  be  efficiently  and 
adequately  achieved,  and  it  is  tremendously  important 
that  they  be  so  achieved.  The  cost  of  accomplishing 
those  results  ceases  to  be  the  primary  consideration. 
Mr.  Lawson  Purdy,  President  of  the  Board  of  Com- 
missioners of  Taxes  and  Assessments  of  the  city  of  New 
York,  hardly  overstates  the  case  when  he  declares,  in  dis- 
cussing the  appalling  chaos  of  land  remnants  skirting  one 
of  the  newly  improved  streets  of  lower  Manhattan,  "  The 
city  of  New  York  could  have  afforded  to  condemn  a  lib- 
eral zone  of  land  on  either  side  of  that  street  and  give  it 
away  rather  than  have  the  street  left  in  this  condition." 
If,  by  excess  condemnation,  a  city  can  prevent  the  ade- 
quate development  of  a  new  or  improved  street  from 
being  arrested  in  this  manner,  or  if  it  can  protect  the 
beauty  and  usefulness  of  a  public  park  or  boulevard,  it 
need  not  seriously  complain  if,  in  the  process,  it  loses 
money  instead  of  making  a  profit.  A  city  need  not 
shrink  from  assuming  any  or  all  of  the  risks  shown  to  be 
incident  to  excess  condemnation  when  by  so  doing  it  ac- 


214  EXCESS  CONDEMNATION 

complishes  results  so  necessary  and  beneficial  to  its  own 
wisest  development.  And  it  should  be  noted  in  passing 
that,  in  recent  years  at  least,  cities  have  employed  this 
policy  but  rarely  in  cases  where  the  protection  of  public 
improvements  in  some  manner  was  not  involved. 

The  final  conclusion  regarding  excess  condemnation 
as  a  means  of  financing  public  improvements  is  that  no 
one  policy  aimed  to  serve  that  end  need  be  used  by  a 
municipality  to  the  exclusion  of  all  others.  In  those  cases 
last  mentioned,  where  the  use  of  excess  condemnation  is 
felt  to  be  legitimate,  a  city  may  very  frequently  find  that 
a  judicious  combination  of  that  system  with  some  scheme 
of  special  assessments  or  increment  taxes  upon  neighbor- 
ing property  which  is  benefited  but  not  condemned,  will 
aflFord  the  best  solution  of  the  problem  of  how  to  construct 
such  an  improvement  at  the  least  cost  to  the  public. 

Such  a  combination  of  methods  would  be  more  equi- 
table to  the  property  owners  concerned  than  the  use 
of  excess  condemnation  alone,  because  under  it  the  city 
would  appropriate  the  accretion  in  the  value,  not  only 
of  the  land  it  actually  condemned,  but  also  of  that  which 
it  did  not  take  but  which  was  measurably  benefited. 
There  would  be  also  the  added  advantage  of  increasing 
the  money  return  to  the  city  by  reason  of  widening  the 
zone  from  which  it  collects  this  increment  of  value, 
thereby  either  swelling  the  profits  of  excess  condemna- 
tion or  mitigating  its  losses.  If  it  is  unsafe  to  employ 
excess  condemnation  as  an  independent  competitor  to  the 
special  assessment  or  the  increment  tax,  there  is  cer- 
tainly no  reason  why  in  many  cases  it  may  not  be  used 
in  conjunction  with  either  or  both. 


CHAPTER  VI 

THE  ADMINISTRATION   OF   EXCESS  CONDEMNATION 

After  it  has  been  decided  that  excess  condemnation 
is  a  policy  which  may  legitimately  be  employed  by  a 
municipality  and  after  the  purposes  for  which  it  may 
wisely  be  used  are  agreed  upon,  there  still  remains  the 
important  and  complex  administrative  problem  of  trans- 
lating the  general  principle  of  excess  condemnation  into 
a  definite  working  program.  In  what  terms  shall  the 
power  of  the  city  to  exercise  this  policy  be  embodied; 
under  what  restrictions  shall  it  be  employed;  how  shall 
the  city  actually  proceed  to  carry  out  its  program? 
These  are  problems  of  vital  importance  because  they 
intimately  affect  the  private  rights  of  the  individual 
citizen  through  the  exercise  on  a  large  scale  of  the  right 
of  eminent  domain,  and  at  the  same  time  involve  an  enor- 
mous expenditure  of  the  city's  money  and  extension  of 
its  credit.  They  are,  moreover,  problems  of  great  com- 
plexity, because  in  a  project  of  excess  condemnation  are 
involved  more  or  less  intricate  questions  of  municipal 
esthetics^  engineering  and  finance. 

It  is  interesting  to  note  that  there  is  not  as  yet  any 
general  agreement  as  to  the  details  of  a  proper  working 
policy  of  excess  condemnation.  No  state  or  country 
has  a  constitutional  amendment  or  statute  exactly  like 
that  of  any  other  state  or  nation.  Some  legislative  bodies 
have  drafted  excess  condemnation  provisions  without  any 
definite  project  in  view,  merely  in  order  that  the  general 
15  215 


2i6  EXCESS  CONDEMNATION 

principle  might  be  embodied  into  law.  These  enactments 
have  been  broad  and  general  in  their  import.  In  other 
cases  acts  have  been  passed  in  order  to  permit  the  use 
of  this  policy  in  some  particular  case  and  in  such  in- 
stances the  form  of  the  provision  itself  has  usually  been 
determined  by  the  concrete  situation  which  the  law- 
makers had  in  mind.  Between  these  two  extremes  there 
are,  of  course,  enactments  drafted  in  some  detail  for  the 
purpose  of  formulating  a  general  working  policy.  But 
nowhere  does  there  seem  to  be  any  substantial  harmony 
upon  anything  except  the  very  broadest  lines  of  an  ex- 
cess condemnation  program. 

Perhaps  the  task  of  dealing  with  the  administrative 
problems  of  excess  condemnation  cannot  be  undertaken 
in  any  more  satisfactory  manner  than  by  studying  the 
wide  variety  of  solutions  for  those  problems  which  have 
either  been  adopted  or  proposed,  here  or  abroad,  in  the 
constitutional  provisions  and  statutes  already  embodying 
that  power.  In  this  way  it  may  be  possible  to  reach 
some  conclusions  as  to  the  best  method  of  putting  the 
policy  of  excess  condemnation  into  actual  operation. 
The  accompanying  analytical  table  has  been  prepared  to 
facilitate  such  a  study. 

A  practical  question,  arising  at  the  very  outset,  is 
whether  it  is  necessary  to  embody  the  power  of  excess 
condemnation  in  a  constitutional  amendment,  or  whether 
it  is  sufficient  for  the  legislature  of  the  state  merely  to 
enact  a  statute  in  due  form.  Practice  in  American  states 
has  differed  upon  this  point.  Constitutional  amendments 
conferring  this  power  upon  cities  have  been  adopted  iri" 
five  states^  and  proposed  in  three  others.^     Nine  states 

1  Ohio ;  New  York ;  Massachusetts ;  Wisconsin ;  Rhode  Island. 

2  Pennsylvania ;  New  Jersey ;  California.  The  New  Jersey  and 
California  proposals  were  defeated  at  the  polls. 


ADMINISTRATION  217 

on  the  other  hand,  have  at  one  time  or  another  conferred 
the  power  by  statute  without  the  sanction  of  a  constitu- 
tional amendment.^  In  a  later  chapter  the  problem  of 
the  constitutionality  of  excess  condemnation  is  discussed 
at  length,  and  it  is  unnecessary  to  enter  upon  that  ques- 
tion here.  It  may  be  said,  however,  that  there  is  an-  ex- 
ceedingly strong  presumption  against  the  power  of  the 
legislature  in  any  state  to  incorporate  this  policy  into  law 
without  definite  authorization  by  constitutional  provision. 
While  it  is  possible  that  a  state  supreme  court  will  yet 
be  found  which  will  declare  such  a  statute  valid,  by  far 
the  safer  plan  to  follow,  for  those  interested  in  pro- 
moting the  use  of  excess  condemnation,  is  to  secure  the 
adoption  of  an  amendment  to  the  state  constitution. 
Many  embarrassing  questions  will  thus  be  settled  before 
they  even  arise.  It  is  interesting  to  note  that  most  of 
the  states  recently  attempting  to  confer  this  power  on 
their  cities  have  pursued  this  policy. 

Another  reason  may  be  suggested  for  putting  the 
power  of  excess  condemnation  into  the  form  of  a  con- 
stitUjtional  amendment.  This  scheme  provides  for  a 
liberal  extension  of  one  of  the  most  arbitrary  powers  of 
government,  that  of  eminent  domain.  By  it  individual 
property  rights  are  effected  to  a  high  degree.  If  there 
is  a  general  conviction  that  those  rights  ought  to  be  pro- 
tected from  the  unrestrained  action  of  the  legislature,  it 
would  be  possible  perhaps  to  write  into  a  constitutional 
amendment  restrictions  on  the  legislative  power  to  enact 
excess  condemnation  laws  which  would  constitute  ade- 
quate safeguards  against  the  abuse  of  that  system.  It 
is,  however,  quite  possible  that  no  such  limitations  will 
be  found  desirable. 

8  Maryland;  Virginia;  Wisconsin;  Pennsylvania;  Connecticut; 
New  York;  Oregon;  Ohio;  New  Jersey. 


2l8 


EXCESS  CONDEMNATION 


CONSTITUTIONAL  AMENDMENTS  PROVIDING 


Kind  of  improve- 

By whom 

Amendment 

ment    to    which 

power    exer- 

Property  taken  in  excess 

applied 

cised 

Mass., 

"Laying    out, 

Common- 

" More    land    and    property 

Art.   X, 

widening  or  relo- 

wealth, 

than  are  needed  for  the  ac- 

Part   1, 

cating    highways 

county,      city 

tual     construction     of     such 

1911 

or  streets." 

or    town 

highway  or  street:  provided 
however,  that  the  land  and 
property  authorized  to  be 
taken  are  specified  in  the 
act  and  are  no  more  in  ex- 
tent than  would  be  sufficient 
for  suitable  building  lots  on 
both  sides  of  such  highway 
or  street" 

Ohio, 

"  A    municipality 

A     municipal- 

" An    excess    over    that    ac- 

Art. 

appropriating     or 

ity 

tually  to  be  occupied  by  the 

XVIII, 

otherwise   acquir- 

improvement." 

Sec.    10, 

ing    property    for 

1912 

public     use     may 
in  furtherance  of 
such  public  use." 

Wise, 

"  E  s  t  a  blishing, 

The    state    or 

"  Lands  for  establishing,  etc. 

Art.    XI, 

laying  out,  widen- 

any   of   its 

.  .  .  and  reservations  in  and 

Sec.  3a, 

ing,  enlarging,  ex- 

cities 

about    and    along   and    lead- 

1912 

tending  and  main- 

ing   to    any    or    all    of    the 

taining   memorial 

same." 

grounds,    streets. 

squares,  park- 

ways, boulevards. 

parks,     p  1  a  y- 

grounds,     sites 

for   public   build- 

ings. ' 

New  York, 

"Laying    out, 

Cities. 

"  More    land    and    property 

Art.   I, 

widening,  extend- 

than   is    needed    for    actual 

Sec.  7, 

ing  or  relocating 

construction    in    the    laying 

1913 

parks,     p  u  b  1  i  c 
places,    highways 
or  streets. 

out,  etc.  .  .   ;  provided,  how- 

ever,    that     the     additional 

land    and    property    so    au- 

thorized   to    be    taken    shall 

be    no    more    than    sufficient 

to     form     suitable     building 

sites  abutting  on  such  parks. 

public  places,  highways  or 
streets." 

ADMINISTRATION 


219 


FOR  EXCESS  CONDEMNATION 


Property 
how  ac- 
quired 

Disposition  of  surplus 

Restrictions  on  future 
use   of  surplus 

Self-executing 

or  enabling 

act 

Taken  in 
fee 

"  and  after  so  much  of 
the    land    or    property 
has   been   appropriated 
for    such    highway    or 
street     as     is     needed 
therefor,       may     auth- 
orize   the    sale    of   the 
remainder  for  value." 

"  With  or  without  suit- 
able restrictions." 

"  The  Legisla- 
ture may  by 
special  acts 
authorize  the 
taking  of  .  .  . 
the  sale  of  the 
remainder." 

"  Appro- 
priate  or 
acquire." 

"  and    may    sell    such 
surplus." 

"  With     such     restric- 
tions   as    shall    be    ap- 
propriate   to    preserve 
the  improvement 
made." 

Self-executing 

"  Acquire 
by  gift, 
purchase 
or  con- 
demnation." 

"  and  after  the  estab- 
lishment,    layout    and 
completion  of  such  im- 
provements,   may   con- 
vey any  such  real   es- 
tate thus  acquired  and 
not  necessary  for  such 
improvements." 

"Wit  h    reservations 
concerning   the   future 
use  and  occupation  of 
such   real   state,   so   as 
to  protect  such  public 
works     and     improve- 
ments   and    their    en- 
virons, and  to  preserve 
the    view,    appearance, 
light,    air    and    useful- 
ness    of    such     public 
works." 

Self-executing 

Take. 

"  After  so  much  of  the 
land  and  property  has 
been   appropriated    for 
such  park,  public  place, 
highway    or    street    as 
is  needed  therefor,  the 
remainder  may  be  sold 
or  leased." 

"  The  legisla- 
ture may  au- 
thorize cities 
to    take.  .  ." 

220 


EXCESS  CONDEMNATION 


CONSTITUTIONAL  AMENDMENTS  PROVIDING 


Amendment 


New  York, 
Art.   I, 
Sec.   6, 
Defeated 
1911 


Wise 

Art. 

XI, 

Sec. 

3b. 

Defeated 

1914 

Cal., 

Art. 

XI, 

Sec. 

20, 

Defeated 

1914 

and 

1915 

N.  J 
Art. 

iv. 

Sec. 

IX. 

Defeated 

ipJS 

Kind  of  improve- 
ment   to    which 
applied 


"  When  private 
property  shall  be 
taken  for  public 
use "  additional 
land  may  be 
taken.  "  Property 
thus  taken  shall 
be  deemed  taken 
for  a  public  use." 


Same  as  New 
York  amendment 
defeated  in  191 1. 


In  conn  e  c  t  i  o  n 
with  "  any  pro- 
posed  improve- 
ment"  and 
"  such  additional 
property  so  taken 
shall  be  deemed 
to  be  taken  for 
public  use." 


"laying  out, 
widening,  extend- 
ing or  relocating 
the  parkSj  public 
places,  highways 
or  streets." 


By   whom 
power    exer- 
cised 


A      municipal 
cor  poration 


Same 


The  state, 
county,  city 
and  county, 
i  n  corporated 
city    or    town 


"State,  or 
counties,  cit- 
ies, towns, 
boroughs  or 
other  muni- 
cipalities, or 
any  board, 
govern  ing 
body  or  com- 
mission of  the 
same." 


Property   taken  in  excess 


"  Additional,  adjoining,   and 
neighboring    property,    etc." 


Same 


"  Additional,  adjoining  or 
neighboring  property  within 
the  limits  thereof,  in  excess 
of  that  actually  to  be  devoted 
to  or  occupied  by  the  pro- 
posed improvement.  .  ." 


"  More  land  and  property 
than  is  needed  for  actual 
construction  in  the  laying 
out,  etc.  .  .  of  parks,  etc. 
.  .  ;  provided,  however,  that 
the  additional  lands  and 
properties  so  authorized  to 
be  taken,  shall  be  no  more 
than  sufficient  to  form  suit- 
able building  sites  abutting 
on  such  parks,  etc." 


ADMINISTRATION 


221 


FOR  EXCESS  CONDEMNATION  —  Continued 


Property 
how  ac- 
quired 

Disposition   of  surplus 

Restrictions  on  future 
use   of  surplus 

Self-executing 

or  enabling 

act 

Take 

Same 

"  Take  and 
appr  0  p  r  i  - 
ate       under 
the  power 
of     eminent 
domain." 
Must  be  a 
fee  simple 
estate 

"  And   such  additional 
property  may  be  sold, 
leased      or      otherwise 
disposed   of,   in   whole 
or  in  part.  .  .  ." 

"  Under     such     terms 
and      restrictions      as 
may  be  appropriate  to 
preserve      or      further 
the  improvement  made 
or      proposed      to      be 
made." 

"  The  condi- 
tions under 
which  such  ad- 
ditional prop- 
erty may  be 
taken  or  ap- 
p  r  0  p  r  iated, 
the  manner 
and  method  of 
providing  pay- 
ment therefor, 
and  the  terms 
and  restric- 
tions under 
which  such 
property  may 
be  sold, 
leased  or 
otherwise  dis- 
posed of,  shall 
lie  prescribed 
by  general 
law.  ' 

Take 

"  And   after   so    much 
of  the  land  or  property 
taken  has  been  appro- 
priated for  such  park, 
public    place,    highway 
or  street  as  is  needed 
therefor,  the  remainder 
may  be  sold  or  leased." 

"  and     reasonable     re- 
strictions imposed." 

"  The  Legisla- 
ture may  au- 
thorize." 

222 


EXCESS  CONDEMNATION 


CONSTITUTIONAL  AMENDMENTS  PROVIDING 


Amendment 

Kind  of  improve- 
ment   to    which 

By   whom 
power    exer- 

Property taken  in  excess 

applied 

cised 

Mass., 

"  E  s  t  a  b  I  ishing 

Common- 

" More  land  than  is  needed 

Art.   X, 

parks,     public 

wealth, 

for    the    actual    construction 

Part   I, 

reservat  ions. 

county,    town 

of  such   parks,   reservations. 

Proposed 

wharves    and 

or  city,  or  by 

wharves   or    docks,    provided 

1914,   to 

docks." 

c  0  m  m  ission 

the  land  and  property  au- 
thorized so  to   be  taken  are 

be  sub- 

authorized by 

mitted  to 

special  act 

specified  in  the  act." 

next 

General 

Court 

No    action 

since 

"  E  s  t  a  Wishing, 

State   or   any 

"  More    land    and    property 

R.   I., 

lajring    out,    wid- 

cities or  towns 

than    is    needed    for    actual 

Art.  XVII, 

ening,    extending 

construction,    etc.  .  .   ;    pro- 

Adopted 

or    relocating    of 

vided,     however,     the     addi- 

1916 

public    highways, 

tional  land  ...  be  no  more 

streets,  places. 

in  extent  than  would  be  suf- 

parks     or     park- 

ficient to  form  suitable  build- 

ways." 

ing  sites  abutting  on  such 
public  highway,  etc.  .  .  ." 

Penn., 
Art.  fX, 

"  May,     in      fur- 

State   or    any 

"  An  excess  of  property  over 

therance     of     its 

municipality 

that  actually  to  be  occupied 

Sec.  16, 

plans  for  the  ac- 

or used  tor  public  use." 

Proposed 

quisition        and 

191S, 

public    use    of 

Must    pass 

such  property  or 

in  nejrt 

rights.  .  ." 

legislature 

ADMINISTRATION 


223 


FOR  EXCESS  CONDEMNATION  —  Continued 


Property 
how  ac- 
quired 


Take 


Acquire  or 
take  in  fee 


Appro- 
priate 


Disposition   of  surplus 


"  after  so  much  of  the 
land  or  property  has 
been  appropriated  for 
such  parks,  etc  ...  as 
is  needed  therefor,  the 
commonwealth,  county, 
etc.,  .  .  .  may  hold, 
lease,  sell  or  use  .  .  . 
the  remainder." 


After  property  neces- 
sary for  improvement 
has  been  used  "  re- 
mainder may  be  sold 
or  leased  for  value 
.  .  .  and  in  case  of 
such  sale  or  lease  the 
person  or  persons  from 
whom  such  remainder 
was  taken  shall  have 
the  first  right  to  pur- 
chase or  lease  the  same 
upon  such  terms  as  the 
state  or  city  or  town 
is  willing  to  sell  or 
lease  the  same." 


Restrictions  on  future 
use   of  surplus 


"  may    thereafter    sell 
or  lease  such  excess." 


"  With  or  without  re- 
strictions." 


"  With      or      without 
suitable    restrictions." 


"  and  impose  on  the 
property  so  sold  or 
leased,  any  restrictions 
appropriate  to  preserve 
or  ennance  the  benefit 
to  the  public  of  the 
property  actually  oc 
cupied    or    used." 


Self-executing 

or  enabling 

act 


General 
Court  may  by 
special  act  au- 
thorize." 


"  The  General 
Assembly  may 
authorize." 


"  And,  subject 
to  such  re- 
strictions as 
the  legislature 
may  from  time 
to  time  impose, 
a  p  p  r  opriate, 
etc.  .  ." 


224 


EXCESS  CONDEMNATION 


STATUTES  PROVIDING  FOR 


Statute 

Kind  of  improvement 
to  which  applied 

By  whom  power 
exercised 

Plan  drafted  by 

N.   J.. 
1870, 
Ch.    117 

Replotting     of     narrow, 
short  and  irregular 
streets 

City  of  Newark 
Commissioners 
a  p  p  ointed    by 
city    council 

Aforesaid  commis- 
sion 

Ohio, 
1904, 
Ann. 
Stat. 
Ch.  2, 
p.   755 

"  Establishing     e  s  p  1  a- 
nades,  boulevards,  park- 
ways, park  grounds  and 
public     reservations     in, 
around    and    leading    to 
public  buildings." 

All      municipal 
corporations 

Va., 
1006, 
Ch.    194 

"  Adjoining  its  parks, 
plats  on  which  its  monu- 
ments   are     located,    or 
other  property  used  for 
public  purposes." 

Any      city      or 
town 

Conn., 

"  Establishing      e  s  p  1  a- 
nades,  boulevards,  park- 
ways,     parks      grounds, 
streets,    high  ways, 
squares,  sites  for  public 
buildings     and     reserva- 
tions "  near  them 

City    of    Hart- 
ford. ■     "  acting 
through       plan- 
ning     commis- 
sion   or    other- 
wise " 

Questions  regarding 
location  of  public 
buildings,  e  s  p  1  a- 
nades.etc,  referred 
to  commission  for 
consideration  before 
final  action  by 
Council 

Pa., 
315 

"  Making,  enlarging,  ex- 
tending, and  maintaining 
public    parks,    parkways 
and  playgrounds  ...  in 
order     to     protect     the 
same." 

Taking    declared    to    be 
for  public  use 

Cities 

"  Council  shall  by 
ordinance  or  joint 
resolution  deter- 
mine  thefeon." 

ADMINISTRATION 
EXCESS  CONDEMNATION 


225 


Plan  approved 

Plan   carried 
out    by 

Property  taken  in  excess 

A  f  0  r  e  s  a  id 
commission 

"  All  or  any  part  of  the  lands,  real  estate, 
buildings  and  improvements  within  the  limits 
described  as  follows  " : 

"  real   estate   within  their  corporate  limits  " 

"property  adjoining  its  parks,  etc.,  or  othet 
property  used  for  public  purposes  or  in  the 
vicinity  of  such  parks,  etc.,  or  property  " 
used  so  as  to  "  impair  the  beauty,  useful- 
ness or  efficiency  of  such  parks  "  and  "  Prop- 
erty adjacent  to  any  street  the  topography 
of  which,  .  .  .  impairs  the  convenient  use 
of  such  street  or  renders  impracticable  with- 
out extraordinary  expense,  the  improvement 
of  the  same." 

Council 
1 

Council      may 
d  e  1  e  g  a  te  to 
c  0  m  m  i  ssion 
powers     not 
expressly    giv- 
en     to      other 
bodies     neces- 
sary   to    com- 
p  1  e  t  i  0  n    of 
work 

"  ReaJ  estate  within  its  corporate  limits  for 
establishing,  etc.,  and  may  convey  any  real 
estate  thus  acquired  and  not  necessary  for 
such  improvements." 

Council 

Council 

Property  within  200  feet  of  the  boundary 
lines  of  the  enumerated  improvements  in 
order  to  protect  them,  provided  the  council 
shall  declare  the  control  of  such  property 
reasonably  necessary  for  such  protection 

226  EXCESS  CONDEMNATION 

STATUTES  PROVIDING  FOR 


Statute 

Property  how  ac- 
quired 

Disposition    of   surplus 

N    J.. 
1870, 
Ch.    117 

Purchase    or    con- 
demn, acquire  title 
to    and    possession 
of 

"  lay  out  and  divide  the  said  lands  and 
premises  .  .  .  into  suitable  lots  and  plots 
and  shall  advertise  and  sell  the  same." 

Ohio, 
1904, 
Ann. 
Stat. 
Ch.  2, 
p.  755 

Appropriate,    enter 
upon  and  hold 

Resale. 

Va., 
1006, 
Ch.   194 

"  Acquire   by    pur- 
chase, ^ift  or  con- 
demnation." 

"  Dispose  of  property  so  acquired." 

Conn., 
1907, 
No.  61 

"  Appropriate,    en- 
ter upon  and  hold 
in  fee." 

"  may  convey  any  such  real  estate  " 

Pa.. 
1007, 
No.  315 

Purchase,    acquire, 
enter    upon,    take, 
use      and      appro- 
priate 

Resell. 

ADMINISTRATION 


227 


EXCESS  CONDEMNATION  —  Continued 


Restrictions    on   future 
use  of  surplus 

Methods  of   reselling 

Disposition    of   proceeds 
of  resale 

"  Advertise     and     sell 
the   same  at  public  or 
private    sale    for    the 
best    prices    and    upon 
the    best    terms    they 
can     obtain     for     the 
same,    which    sale    or 
sales      may      be      ad- 
journed  from   time  to 
time    at    their    discre- 
tion." 

"  All  of  the  purchase 
moneys  and  securities 
shall  be  in  the  name  and 
behalf  of  the  mayor,  etc., 
shall  be  paid  into  the 
sinking  fund."  If  the 
proceeds  arc  enough  to 
make  a  surplus,  this  sur- 
plus is  to  oe  distributed 
pro  rata  among  the  own- 
ers of  property  taken. 

"  With  such  reservations 
in  the  deeds  of  resale  as 
to     future     use    of    said 
lands  so  as  to  protect  pub- 
lic buildings  and  their  en- 
virons,   and    to    preserve 
the      view,      appearance, 
light,    air,    usefulness    of 
public    grounds    occupied 
by  public  buildings,  etc." 

"Making    limitations    as 
to  the  use  thereof,  which 
will    protect    the    beauty, 
usefulness,    efficiency,    or 
convenience     of     such 
parks,  etc." 

"  With  or  without  reserv- 
ations concerning  the  fu- 
ture use  and   occupation 
of  such  real  estate  so  as 
to    protect    such    public 
works  and  improvements 
and    their    environs    and 
to  preserve  the  view,  ap- 
pearance,   light,    air   and 
usefulness  of  such  public 
works." 

"  With   such   restrictions 
in  the  deeds  of  resale  in 
regard  to  the  use  there- 
of,  as    will    fully   insure 
the    protection    of    such 
public    parks,    etc.,    their 
environs,     the     preserva- 
tion of  the  view,  appear- 
ance,   light,    air,    health 
and  usefulness  thereof  " 

"  Provided,  however,  that 
the  proceeds  arising  from 
the  resale  of  any  such 
property  so  taken  shall 
be  deposited  in  the  treas- 
ury of  said  cities,  and 
be  subject  to  general  ap- 
propriation by  the  coun- 
cils of  said  city." 

228 


EXCESS  CONDEMNATION 


STATUTES  PROVIDING  FOR 


Statute 

Kind   of   improvement 
to  which  applied 

By  whom  power 
exercised 

Plan  drafted  by 

Md.. 
1908, 
Ch.  166 

"  esplanades,  boulevards, 
parkways,       playgrounds 
or   public   reservations  " 
In   order  to  better  pro- 
tect or  enhance  the  use- 
fulness 

City    of    Balti 
more 

Mayor  and  Council 

Wise, 
1909. 
Ch.  162 

Establishing,  laying  out, 
widening,   enlarging,   ex- 
tending,    and     maintain- 
ing   memorial    grounds, 
streets,     squares,     park- 
ways, boulevards,  parks, 
playgrounds,     sites     for 
public     buildings     and 
areas     near     by.     These 
uses  declared  public 

Cities     of     ist, 
2nd,   3rd   class- 
es. 

Acting  through 
planning     com- 
mission    or 
otherwise 

All  public  improve- 
ment projects  must 
be  referred  to  plan- 
n  i  n  g  commission 
for  consideration 
before  final  action 
by  Council 

Wise, 
1909, 
Ch.  i6s 

Making,    enlarging,    ex- 
tending,   protecting    and 
maintaining  public  parks, 
parkways,    civic    centres 
and  playgrounds,  and  to 
protect    them.     These 
uses  declared   public. 

Cities    and 
counties  having 
a    p  0  p  u  lation 
of   2So,ooo  and 
upwards 

Council  or  county 
board  sh^ll  by  or- 
dinance or  resolu- 
tion determine 
thereon 

ADMINISTRATION 
EXCESS  CONDEMNATION  —  Con/inwed 


229 


Plan   carried 
out  by 


Mayor     and    Mayor      and 
Council  Council 


Plan  approved 
bf 


Property  taken  in  excess 


"  any  and  all  land  and  property  or  inter- 
est in  land  and  property,  adjoining  and  ex- 
tending such  distance  as  may  be  adjudged 
necessary,  'from  any  property  in  use  or  about 
to  be  acquired  for  such  esp4aniade,  etc.,  the 
use  of  wMch  said  adjacent  property  it  may 
be  deemed  necessary  or  beneficial  to  sub- 
ject to  lawiful  restrictions  or  coptrol  in  order 
to   protect^  etc.  .  ." 


Council 


Council  may 
give  commis- 
sion power  to 
carry  out  plan 
when  that 
does  not  inter- 
fere with  pow- 
e  r  of  any 
other  body 


"  any   lands   within  its   corporate   limits   for 
establishing,  etc.  ,  .  ." 


Council 


Council 


"  neighborhood  private  property  for  the  pur- 
poses herein  specified." 


230  EXCESS  CONDEMNATION 

STATUTES  PROVIDING  FOR 


Statute 

Property  how  ac- 
quired 

Disposition   of  the  surplus 

Md., 
1008, 
Ch.    166 

Purchase    or    con- 
demnation 

Resale  of  such  adjacent  land  or  property 

Wise, 
1909, 
Ch.   162 

Gift,    purchase    or 
condemnation 

"  may  convey  any  such  real  estate  thus 
acquired  and  not  necessary  for  such  im- 
provements." 

Wise, 
1909, 
Ch.    1 6s 

Purchase,    acquire, 
enter    upon,    take, 
use  and  appropriate 

"  and  after  the  improvement  is  made  to 
resell   such  neighboring  property." 

ADMINISTRATION 
EXCESS  CONDEMNATION  —  Continued 


231 


Restrictions    on    future 
use  of  surplus 

Methods   of   reselling 

Disposition    of    proceeds 
of  resale 

"  such    reservations    and 
restrictions  as  to  the  sub- 
sequent   use    thereof,    as 
may  appear  advisable  for 
the    protection    of    such 
public  building  or  build- 
ings,   or    for    enhancing 
the  usefulness  thereof,  or 
in    any    manner    to    pro- 
mote the  interests  of  the 
public     therein,    or    for 
better   insuring   the   pro- 
tection   or   usefulness   of 
such  esplanades,   etc.,  or 
in  any  manner  to  better 
accomplish    the    purposes 
and  serve  the  public  in- 
terests   for    which    thev 
shall   have  been  or  shall 
be  established." 

"  with    reservations   con- 
cerning the  future  use  of 
such  real  estate,  so  as  to 
protect  such  public  works 
and    improvements,    and 
their  environs  and  to  pre- 
serve   the    view,    appear- 
ance, light,  air  and  use- 
fulness   of    such     public 
works  and  to  protect  the 
public    health    and    wel- 
fare." 

"  with   restrictions   as  to 
the  building  thereon  and 
use  thereof  so  as  to  care- 
fully   preserve    the   same 
for  the  purposes  intend- 
ed." ..."  and   may   in- 
clude in  addition  to  the 
protection    herein    speci- 
fied   the    preservation   of 
the      view,      appearance, 
light,    air    or    usefulness 
in  general  of  said  prem- 
ises for  public  purposes." 
Contracts  containing  such 
restrictions  shall  be  bind- 
ing on  owner  of  property 
and  his  grantees 

Proceeds    to    be    subject 
to   general    appropriation 

16 


232 


EXCESS  CONDEMNATION 


STATUTES  PROVIDING  FOR 


Statute 

Kind   of  improvement 
to  which  applied 

By  whom  power 
exercised 

Plan  drafted  by 

Wise, 
1911, 
Ch.  486 

Converting    streets    and 
highways   designated    by 
council  into  parkways  or 
boulevards 

Any     city     in 
state 

Board  of  public 
land  commission- 
ers, to  recommend 

N.  Y.. 
1911, 
Ch.  776 

Water-front        facilities, 
terminal   facilities,   ways 
and  stations 

City     of     New 
York,  Board  of 
Estimate     and 
Apportionment 

Mass., 
1912, 
Ch.    186 

"  widening    Belmont 
Street." 

City    of    Wor- 
cester 

Mass., 
1 91 3, 
Ch.    201 

Laying     out     and     con- 
structing     a      proposed 
street 

City    of    Wor- 
cester 

Plan  made  by  city 
engineer  must  be 
on  file 

Mass., 
1913. 
Ch.   326 

Laying     out,      widening 
and  relocating  Washing- 
ton   Square   and   streets 
nearby. 

City    of    Wor- 
cester 

Mass., 

1913. 
Ch.  703 

Widening  Bridge 
Street 

City  of  Salem 

Mass., 
1913. 
Ch.  778 

Laying  out  of  Humphrey 
Street,       in       town      of 
Swampscott 

M  a  ssachusetts 
Highway    Com- 
mission 

Plan  made  by 
Massachus  etts 
Highway  Commis- 
sion 

Ore.. 
19131 
Ch.   269 

Public   squares,   parks 
and    playgrounds.      Tak- 
ings  for   these   uses   de- 
clared public 

Any  municipal- 
ity of  10,000  or 
more 

Municipal  authori- 
ties to  specify  by 
ordinance  land  to 
be  taken  and  re- 
strictions imposed 

ADMINISTRATION 
EXCESS  CONDEMNATION  — Con/mufd 


233 


Plan  approved 
by 

Plan   carried 
out  by 

Property  taken  in  excess 

Council  by 
resolution 

Council    fixes 
price    or   con- 
demns     land. 
Land    commis- 
sioners    may 
then  carry  out 
plan 

Land  within  300  feet  on  either  side  of 
and  abutting  on  any  street  or  highway 

Such  additional  and  adjacent  area  as  the 
board  of  estimate  and  apportionment  deem  it 
necessary  to  replot,  regrade  or  otherwise 
adapt  for  convenient  access  to  and  use  of 
sucn  ways  and  stations  or  other  improvements 
of  the  waterfronts,  etc. 

"  a  strip  of  land  not  exceeding  160  feet 
in  depth  on  the  southerly  side  of  Belmont 
Street.' 

"  the  whole  or  parts  of  lots  of  land  not 
exceeding  150  feet  in  depth  on  both  sides" 
of  the  street 

Certain  lands  definitely  bounded  in  the  act. 

Strips  of  land  definitely  described  in  the 
act  and  not  more  than  125  feet  in  depth 

County      com- 
missioners    of 
Essex    County 
and  Selectmen 
of      town      of 
Swampscott 

County      com- 
missioners    of 
Essex    County 

Any  or  all  property  between  certain  speci- 
fied points  and  not  exceeding  200  feet  in 
depth  from  boundary  line  of  proposed  high- 
way. 

Land  and  property  in  excess  of  what  is 
needed  for  the  improvements  specified 
"  which  land  shall  not  embrace  more  than 
200  feet  beyond  the  boundary  line  of  the 
property  to  be  used  for  such  purposes." 
Council  to  declare  by  ordinance  that  con- 
trol of  such  adjacent  property  is  neces- 
sary to  protect  the  improvement 

234  EXCESS  CONDEMNATION 

STATUTES  PROVIDING  FOR 


Statute 

Property    how    ac- 
quired 

Disposition    of   the   surplus 

Wise., 

JOII, 

Ch.    486 

Gift,       purchase, 
condemnation 

"  manage,  control,  govern,  improve,  sub- 
divide, re-subdivide,  and  plot,  and  sub- 
ject to  the  prior  approvaj  of  the  common 
council  of  such  city,  to  mortgage  and  sell 
any  such  land  or  any  parcels  thereof." 

N.  Y., 
1911, 
Ch.   776 

Acquire 

"  After  the  same  shall  have  been  replotted, 
regraded  or  otherwise  adapted  for  such 
access,  use  or  improvement  may  be  dis- 
posed of  by  the  city." 

Mass., 

10X2, 

Ch.    186 

Take  in  fee 

After  using  what  is  necessary  for  wid- 
ening the  street,  the  city  may  sell  the  re- 
mainder for  value. 

Mass., 
Ch.   201 

Take  in  fee 

Street  commissioner  to  sell  and  convey 
by  deeds  the  remainder  of  land  for  such 
value  and  consideration  as  is  approved 
by  the  mayor 

Mass., 
J913. 
Ch.   326 

Take  in  fee 

Sell  the  part  not  needed  for  value 

Mass., 
Ch.   703 

Take  in  fee 

Sell  the  remainder  for  value 

Mass., 
J913. 
Ch.   778 

Purchase    or    take 
in  fee. 

Sell  any  land  not  needed  for  the  improve- 
ment 

Ore., 
i?i3. 
Ch.   269 

Acquire,    purchase, 
take,      use,      enter 
upon  and  appro- 
priate 

Municipal  authorities  may  authorize  the 
sale  of  property  not  needed 

ADMINISTRATION 


235 


EXCESS  CONDEMNATION  — ConfirtM^rf 


Restrictions    on   future 
use  of  surplus 


"  such  restrictions  and 
reservations  as  may  be 
deemed  necessary  in  or- 
der to  convert  such  street 
or  highway  into  a  park- 
way or  boulevard,  and 
to  protect  the  same  and 
its  environs  and  pre- 
serve the  view,  appear- 
ance, light,  air,  health  and 
usefulness  thereof." 


"  such  restrictions  as  said 
board  may  see  fit  to  im- 
pose thereon  to  promote 
such  access  or  use  or  to 
effect  such  improvement." 


"  with    or    without    suit- 
able   restrictions." 


Methods   of  reselling 


Disposition    of   t>roceeds 
of  resale 


"  with  or  without  suitable 
restrictions." 


"  with  or  without  suitable 
restrictions." 


"  with    or    without    suit- 
able restrictions." 


Such  restrictions  in  deeds 
of  resale  as  will  "  fully 
insure  the  protection  of 
such  public  squares,  etc., 
their  environs,  the  pres- 
ervation of  the  view,  ap- 
pearance, light,  air,  health 
or  usefulness  thereof  " 


City     shall     receive 
sealed    bids    after    ad- 
vertising  the   sale. 
May  reject  any  or  all 
bids  and   re-advertise 


Used  to  pay  interest  and 
principal  of  bonds  issued 
for  improvement.  Sur- 
plus to  be  used  by  the 
park  department  of  city 


236  EXCESS  CONDEMNATION 

STATUTES  PROVIDING  FOR 


Statute 

Kind    of  improvement 
to  which  applied 

By  whom  power 
exercised 

Plan  drafted  by 

Conn., 
1913. 
Spec. 
Act.  243 

Establishing    esplanades, 
boulevards,     sites     for 
public  buildings    ^ 

City     of     New 
Haven 

N.   Y., 
ipi4, 
Ch.  300 

Laying     out,     widening, 
extend;ing   or    relocating 
parks,    public   places, 
highways  or  streets 

City    of    Syra- 
cuse 

Council     asks     city 
engineer  for  a  plan 
of   all    lands   to   be 
taken 

N.  Y., 
1915. 
Ch.  593 

Any  improvement.     Ex- 
cess  taking   declared    to 
be    for   public   purpose 

City     of     New 
York,     through 
Board   of   Esti- 
mate   and    Ap- 
portionment 

Montreal 
Charter, 

No.   421 

"  Any  municipal  purpose 
whatsoever." 

City    of    Mont- 
r  e  a  Ij   through 
council      acting 
on     report     of 
board    of    com- 
missioners 

Statutes 
of  Ontario 
Ch.   119, 
No.  12, 
1911 

Opening,    widening,    ex- 
tending   and    straighten- 
ing   street,     laying     out 
and     establishing     parks 
or  playgrounds 

City  of  Toron- 
to 

MODEL  STATUTES  PROVIDING 


Statute 

Kind    of  improvement 
to  which  applied 

By  whom  power 
exercised 

Plan     drafted     by 

Ottawa, 
1914I 

"any  street,  public  park, 
playground,      or      other 
open  space." 

Local      town 
planning  boards 

Local     board    initi- 
ates   plan    or   takes 
suggestion    of    cen- 
tral board  of  Prov- 
ince 

National 

Municipal 

League, 

"  local    public    improve- 
ments." 

Cities 

1  From  First  Draft  of  a  Town  Planning  Act.     Prepared  by  a  committee  of 
the  Commission  of  Conservation,  Ottawa. 

*  From  the  "  Model  Charter  "  of  the  League,  tentative  draft. 


ADMINISTRATION 
EXCESS  CONDEMNATION  — Con/JMu^d 


237 


Plan  approved 
by 

Plan   carried 
out    by 

Property  taken  in  excess 

Real    property    and   any    interest    therein 

Council  by  or- 
dinance 

C  ommissioner 
of      public 
works 

More  property  than  is  actually  needed  for 
the  construction  of  the  improvements  speci- 
fied, provided  the  surplus  shall  be  no  more 
than  enough  to  form  suitable  building  sites 
abutting  on  such  improvements 

More  real  property  than  is  needed  for  the 
improvement  provided  the  surplus  is  not 
more  than  is  needed  for  the  formation  of 
suitable  building  sites  abutting  on  the  im- 
provement 

"  more  than  the  immovables  or  parts  of 
immoveables  required  for  the  object  in 
view." 

Any  land  within  200  feet  of  such  street, 
park  or  playground 

FOR  EXCESS  CONDEMNATION 


Plan  carried 
out    by 

Plan  approved 

h 

Property  taken  in  excess 

Local  board 
and      central 
board  of  Prov- 
ince. 

"  neighboring  private  property  within  200 
feet  of  the  boundary  lines  or  proposed 
boundary  lines  of  any  street,  etc." 

"  an  excess  over  that  needed  for  any  such 
improvement." 

238 


EXCESS  CONDEMNATION 


STATUTES  PROVIDING  FOR 


Statute 

Property    how    ac- 
quired 

Disposition   of   the   surplus 

Conn., 
1913, 
Spec. 
Act.  243 

Buy  and  hold 

"  may  convey  and  give  good  title  to  any 
property  thus  acquired  and  not  needed 
for  the  improvement." 

N.    Y., 
1914. 
Ch.    300 

Take 

Elaborate  provi- 
sions    regarding 
condemnation 

After  such  land  as  is  necessary  for  the 
improvement  .  .  .  the  remainder  may  be 
sold  or  leased  by  the  city 

N.   Y., 
1915. 
Ch.    593 

Acquire 

Elaborate    p  r  0  v  i- 
sions    as    to    when 
title    may    vest    in 
property  con- 
demned 

"  may  be  either  held  and  used  by  the 
city,  or  sold  or  leased  by  it  in  the  man- 
ner provided  by  the  Charter  of  Greater 
New  York." 

Montreal 
Charter, 

No.  421 

Purchase  b  y   m  u- 
tual  agreements  or 
expropriate 

Resell 

Statutes 
of   Ontario, 
Ch.   1:9, 
No.    12, 
1911 

"  By     purchase    or 
without     the     con- 
sent   of    the    own- 
ers " 

"  The  Corporation  shall  sell  and  dispose 
of  so  much  of  the  said  lands  as  are  not 
required  for  such  work  within  seven 
vears  or  within  such  further  time  as  may 
be  fixed  by  the  Lieutenant-Governor  in 
Council." 

MODEL  STATUTES  PROVIDING 


Statute 

Property  how  ac- 
quired 

Disposition   of  the  surplus 

Ottawa, 
1914  1 

Acquire,   enter   up- 
on  take,   use,   and 
appropriate 

"  and   shall    resell    the   same   as   may  be 
directed  by  the  central  board." 

National 
Municipal 
League, 
1915' 

Acquire     by     con- 
dem  nation  or 
otherwise. 

Sell  or  lease  the  excess  property. 

*  From  First  Draft  of  a  Town  Planning  Act.     Prepared  by  a  committee  of 
the  Commission  of  Conservation,   Ottawa. 

2  From  the  "  Model  Charter  "  of  the  League,  tentative  draft. 


ADMINISTRATION 


239 


EXCESS  CONDEMNATION  — Con/wM^rf 


Restrictions    on   future 
use  of  surplus 

Methods  of  reselling 

Disposition    of   proceeds 
of  resale 

"  with   or   without  reser- 
vations    concerning     the 
future    use    and    occupa- 
tion of  such  real  estate." 

All  money  from  resale 
or  lease  to  be  used  to 
retire  bonds  to  meet  cost 
of  acquiring  additional 
property 

"  Such    restrictions,  .  .  . 
as     to     the     location     of 
buildings    with    reference 
to   the   real    property   ac- 
quired   for   the    improve- 
ment,   or    the    height    of 
buildings    or    structures, 
or  the  character  of  con- 
struction and  architecture 
thereof,    or    such     other 
covenants,    conditions    or 
restrictions     as     it     may 
deem  proper." 

Proceeds  to  be  used  ex- 
clusively to  defray  the 
cost  of  such  improve- 
ments 

Proceeds  to  go  wholly  or 
partly  to  pay  for  the  ex- 
cess land  or  the  cost  of 
the  improvement 

FOR  EXCESS  CONDEMNATION  — CoH/mu<?£/ 


Restrictions   on    future 
use  of  surplus 

Methods  of  reselling 

Disposition    of   proceeds 
of  resale 

Proceeds  to  be  used  by 
local  _  board  for  town 
planning  purposes  ap- 
proved by  central  board 

"  restrictions  in  order  to 
protect  and  preserve  the 
improvement." 

240  EXCESS  CONDEMNATION 

If  there  is  to  be  a  constitutional  provision,  then,  em- 
bodying the  principle  of  excess  condemnation  what  ought 
to  be  the  character  of  that  provision  ?  This  is  a  question 
of  no  small  deUcacy.  The  ideal  constitutional  clause 
bearing  upon  this,  as  upon  other  subjects,  will  steer  a 
middle  course  betv^^een  those  provisions  on  the  one  hand, 
which  are  too  vaguely  general  to  enunciate  a  clear  and 
definite  policy,  and  those  voluminous  clauses  on  the 
other  hand,  which  specify  with  the  precision  of  a  statute 
even  the  most  minute  details. 

Perhaps  the  first  question  to  face  in  determining  the 
character  of  a  constitutional  provision  for  excess  con- 
demnation is  whether  that  provision  should  be  self -exe- 
cuting. Thus  far  there  have  been  but  two  constitutional 
amendments  proposed  or  adopted  which  do  not  require 
legislative  action  to  put  them  into  force.*  There  is  a 
manifest  disadvantage,  of  course,  in  conferring  a  general 
grant  of  power  upon  the  cities  of  a  commonwealth,  and 
then  obliging  those  cities  to  wait  helplessly  until  the 
legislature  of  the  state  chooses  to  act  in  such  a  way  as  to 
make  that  grant  of  power  efifective.  There  are  instances 
in  which  the  legislative  assembly  has  refused  to  give  heed 
to  such  a  mandate  or  has  given  heed  only  after  long  de- 
lay. It  is  no  part  of  the  province  of  this  study  to  oflfer 
a  solution  for  such  a  problem.  It  is  believed,  however, 
that  the  power  of  condemning  land  in  excess  should  be 
given  to  cities  only  in  terms  and  under  restrictions  too 
detailed  and  too  flexible  to  render  appropriate  their  incor- 
poration into  the  organic  law  of  the  state.  The  grant  of 
power  contained  in  the  constitution  and  couched  in  gen- 
eral terms  should  be  amplified  and  rendered  specific  in 
statutes  passed  by  the  general  assembly.  The  people  of 
the  state  are  surely  not  without  a  remedy  if  the  legisla- 

*  Wisconsin;  Ohio. 


ADMINISTRATION  241 

ture  declines  to  give  effect  to  their  expressed  wishes. 
If  the  power  of  excess  condemnation  is  to  be  em- 
bodied in  a  constitutional  provision  which  is  not  self- 
executing,  ought  the  statutes  necessary  to  give  it  effect 
be  general  or  special  statutes?  The  Massachusetts 
clause  calls  for  the  passing  of  special  statutes;  amend- 
ments proposed  and  defeated  in  California,  Wisconsin 
and  New  York  required  such  enactments  to  be  general  in 
character;  while  the  other  constitutional  provisions  leave 
the  matter  open  except  in  so  far  as  the  power  to  pass 
special  laws  may  be  limited  by  other  sections  of  the  state 
constitution. 

If  the  system  of  private  bill  legislation  were  developed 
in  this  country  under  conditions  similar  to  those  which 
prevail  in  England,  perhaps  a  vigorous  argument  could 
be  advanced  in  favor  of  conferring  the  power  of  excess 
condemnation  by  special  statute.  As  a  rule,  however, 
there  is  little  to  be  gained  from  such  a  plan  in  the  average 
American  state.  If  a  city  itself  cannot  be  trusted  to 
apply,  efficiently  and  honestly,  such  a  general  municipal 
policy  as  that  under  discussion,  it  is  doubtful  if  matters 
will  be  materially  helped  by  handing  over  to  the  legis- 
lature the  task  of  working  out  the  details  for  every  pro- 
posed project.  Experience  has  certainly  shown  re- 
peatedly that  to  send  the  cities  of  a  state  to  the  doors  of 
the  legislature,  seeking  an  authorization  to  act  in  each 
case  when  municipal  action  seems  advisable,  is  demoraliz- 
ing both  to  the  legislature  and  to  the  city.  The  policy  of 
excess  condemnation  should  be  worked  out  by  the  legis-  , 
lature  in  general  statutory  provisions  which  should  be 
applicable  alike  to  all  cities  or  to  all  cities  in  the  same  gen- 
eral class.  The  legislature  should  not  be  permitted  to 
deal  with  this  highly  complex  problem  by  the  passing  of 
special  statutes. 


242  EXCESS  CONDEMNATION 

The  question  also  arises  upon  what  governmental  units 
a  state  constitutional  provision  should  confer  the  power 
of  excess  condemnation.  Most  clauses  which  have  been 
proposed  or  adopted  have  been  content  to  grant  the  privi- 
lege only  to  municipalities.  In  several  instances  the 
power  is  granted  to  the  state,  counties,  towns  and  cities. 
The  broadest  provision  upon  this  point,  however,  is  that 
of  the  New  Jersey  amendment  defeated  in  191 5,  in  which 
the  authority  to  condemn  land  in  excess  was  given  to 
the  "  state  or  counties,  cities,  towns,  boroughs  or  other 
municipalities,  or  any  board,  governing  body  or  com- 
mission of  the  same."  It  is  doubtless  true  that  munici- 
palities will  make  the  most  frequent  and  extensive  use 
of  this  policy,  but  there  seems  to  be  no  clear  reason  why 
the  other  governmental  authorities  mentioned  should  not 
be  equally  empowered  to  employ  it  should  an  appropriate 
occasion  arise.  A  constitutional  provision  for  excess 
condemnation  should  not  neglect  to  confer  that  power 
upon  all  these  public  authorities. 

There  is  some  disagreement  in  the  existing  constitu- 
tional provisions  as  to  what  are  the  purposes  for  which 
a  city  should  be  allowed  to  exercise  the  power  of  excess 
condemnation.  It  has  already  been  indicated  in  the 
earlier  chapters  of  this  study  that  this  policy  has  been 
urged  as  a  means  of  securing  an  adequate  replotting  of 
land,  as  a  method  of  protecting  the  beauty  or  usefulness 
of  a  public  improvement  and  for  the  purpose  of  making 
a  money  profit.  After  an  elaborate  discussion  of  the  way 
in  which  excess  condemnation  as  applied  to  these  three 
purposes  has  actually  worked  out,  the  conclusion  was  ad- 
vanced that  the  financial  risks  of  the  scheme  were  too 
serious  to  warrant  its  use  for  purely  financial  ends. 
Without  reopening  the  discussion  on  that  point,  it  is  here 
suggested  that  a  constitutional  provision  embodying  the 


ADMINISTRATION  243 

power  of  excess  condemnation  ought  to  stipulate  that 
that  policy  should  be  used  only  for  the  furtherance  of  the 
first  two  purposes  mentioned,  namely  the  securing  of  ade- 
quate building  sites  abutting  an  improvement,  and  the 
providing  of  adequate  protection  to  the  beauty  and  use- 
fulness of  a  public  improvement. 

The  constitutional  clauses  dealing  with  this  problem 
show  considerable  divergence  upon  another  point, 
namely,  the  kinds  of  undertakings  in  connection  with 
which  it  is  permissible  to  use  excess  condemnation. 
There  are  two  classes  of  provisions  so  far  as  this  matter 
is  concerned.  There  are,  in  the  first  place,  several 
amendments  which  enumerate  in  considerable  detail  the 
kinds  of  projects  in  connection  with  which  the  public 
authorities  may  condemn  land  in  excess.  The  best  ex- 
ample of  this  type  of  enactment  is  the  clause  in  the  con- 
stitution of  Wisconsin  providing  that  the  power  of  ex- 
cess condemnation  may  be  employed  "  for  establishing, 
laying  out,  widening,  enlarging,  extending  and  maintain- 
ing memorial  grounds,  streets,  squares,  parkways,  boule- 
vards, parks,  playgrounds  and  sites  for  public  buildings." 
The  principal  objection  to  a  detailed  enumeration  of  this 
sort  is  that  it  must  be  construed  as  excluding  everything 
not  definitely  contained  in  it,  and  a  municipality  may  not 
always  be  able  to  foresee  every  kind  of  public  improve- 
ment in  connection  with  which  it  may  wish  to  use  excess 
condemnation.  Thus  the  constitutional  amendment 
adopted  in  Massachusetts,  in  191 1,  provided  for  the  exer- 
cise of  this  policy  "  for  the  purpose  of  laying  out,  widen- 
ing or  relocating  highways  or  streets."  It  soon  became 
apparent  that  so  rigid  a  limitation  on  the  purposes  for 
which  land  might  be  condemned  in  excess  was  quite  un- 
warranted, and  an  additional  amendment  has  been  pro- 
posed by  one  General  Court,  extending  the  use  of  the 


244  EXCESS  CONDEMNATION 

scheme  to  projects  for  the  "  establishing  of  parks,  public 
reservations,  wharves  and  docks."  ^  In  order  to  avoid 
such  inconvenience  as  this,  several  states  have  framed 
constitutional  provisions  for  excess  condemnation  of  a 
different  class,  clauses  in  which  the  public  authorities  are 
given  the  right  to  employ  that  policy  in  any  project  of 
public  improvement.®  It  is  felt  that  these  general  clauses 
are  preferable  to  those  containing  the  detailed  enumera- 
tions described.  It  is  hard  to  see  why  excess  condem- 
nation cannot  be  applied  as  appropriately  in  connection 
with  the  building  of  a  bridge  or  wharf  as  in  connection 
with  the  opening  of  a  park  or  the  widening  of  a  street. 
The  success  and  justice  with  which  the  system  operates 
do  not  depend  upon  the  precise  kind  of  public  work 
which  is  being  created.  The  power  of  excess  condem- 
nation should  be  applicable  to  any  public  improve- 
ment. 

There  is  another  question  regarding  the  kind  of  a  con- 
stitutional provision  in  which  the  power  of  excess  con- 
demnation should  be  embodied  upon  which  there  seems 
to  be  no  substantial  agreement.  This  is  the  question  of 
what  limitations,  if  any,  ought  to  be  placed  upon  the 
amount  of  property  which  a  public  authority  may  con- 
demn in  excess  of  actual  needs.  The  two  answers  which 
have  been  made  to  this  question  are  first,  that  the  surplus 
property  thus  taken  shall  be  no  more  than  is  sufficient  to 
form  suitable  building  sites  abutting  on  the  improve- 
ment ;  ^  and  second,  that  no  limitation  in  regard  to  the 

s  Since  this  proposed  amendment  was  not  approved  by  the  next 
General  Court  elected,  it  was  never  submitted  to  the  people  for 
ratification. 

8  New  York  (1911)  ;  Ohio  (1912)  ;  Wisconsin  (1914)  ;  Cali- 
fornia (1914-15)  ;  Pennsylvania  (1915)- 

■^  New  York;  Rhode  Island;  New  Jersey  (defeated);  Massa- 
chusetts (1911). 


ADMINISTRATION  245 

matter  shall  be  laid  down  in  the  constitution.*  Assum- 
ing for  the  sake  of  argument  that  a  restriction  of  some 
kind  ought  to  be  placed  upon  the  amount  of  land  con- 
demned in  excess,  there  is  still,  as  will  be  seen  later  on, 
considerable  diflFerence  of  opinion  as  to  just  what  that 
limitation  should  be.^  Whether  that  excess  taking  should 
be  limited  to  an  amount  suitable  for  building  sites,  or 
should  be  limited  to  a  depth  of  a  definite  number  of  feet, 
is  a  problem  which  can  best  be  solved  by  actual  expe- 
rience. Rather  than  incorporate  an  a  priori  solution  to 
that  problem  into  a  constitutional  provision  it  would  seem, 
on  the  whole,  wiser  to  leave  the  matter  open  and  allow 
the  legislature  to  impose  such  restrictions  as  may,  in  the 
light  of  actual  experience,  seem  to  be  wise. 

It  has  been  suggested  above,^*^  that  state  legislatures 
have  in  some  cases  felt  free  to  confer  upon  municipalities 
the  right  to  impose  reasonable  restrictions  upon  the  fu- 
ture use  of  the  surplus  property  which  it  resells,  even 
when  the  constitution  of  the  state  is  silent  upon  that 
point.  It  may  very  well  be,  therefore,  that  it  is.  quite 
unnecessary  to  have  any  pronouncement  in  the  constitu- 
tion in  regard  to  the  matter.  There  is  nothing  to  be  lost, 
however,  and  much  may  be  gained  in  precision  by  having 
it  definitely  stated  in  the  constitution  that  public  authori- 
ties may  impose  such  reasonable  restrictions  upon  the 
future  use  of  surplus  property  of  which  they  wish  to  dis- 
pose. 

Finally,  a  constitutional  provision  defining  the  policy 
of  excess  condemnation  should  allow  the  legislature  to 
provide  that  property  condemned  by  a  public  authority  in 

*Ohio;  Wisconsin  (passed  1912)   (defeated  1914)  ;  New  York, 
191 1,  defeated;  California;  Massachusetts,  1914;  Pennsylvania. 
^  Infra,  p.  257ff. 
10  Supra,  p.  102. 


246  EXCESS  CONDEMNATION 

excess  of  its  needs  may  subsequently  be  disposed  of  by 
sale  or  lease. 

In  recapitulation,  then,  there  should  be  a  constitutional 
provision  embodying  the  power  -of  excess  condemnation 
and  that  provision  should  be  drawn  along  the  following 
seven  lines : 

1.  It  should  be  given  eflfect  by  means  of  general  statutes 
enacted  by  the  state  legislature ; 

2.  It  should  confer  the  power  of  excess  condemnation 
upon  the  state  itself,  counties,  municipal  corporations 
or  any  board,  governing  body  or  commission  of  the 
same; 

3.  It  should  make  the  power  available  only  for  the  se- 
curing of  adequate  building  sites  abutting  an  improve- 
ment and  for  protecting  the  beauty  and  usefulness  of  an 
improvement,  and  not  for  recoupment  merely; 

4.  It  should  make  such  power  available  in  connection 
with  the  construction  of  any  kind  of  a  public  improve- 
ment; 

5.  It  should  place  no  definite  restriction  upon  the 
amount  of  land  which  may  be  condemned  in  excess, 
merely  providing  that  more  land  may  be  thus  taken  than 
is  actually  necessary  for  the  improvement; 

6.  It  should  permit  that  surplus  to  be  sold  or  leased. 

7.  It  should  make  possible  the  imposition  of  reason- 
able restrictions  upon  the  future  use  of  that  surplus  prop- 
erty. 

A  criticism  of  such  a  constitutional  provision  imme- 
diately suggests  itself.  The  important  powers,  thereby 
conferred,  are  couched  in  exceedingly  general  terms,  and 
are  surrounded  by  almost  no  restrictions  aiming  to  guard 
against  an  abuse  of  those  powers  and  a  wanton  disregard 
of  the  rights  of  the  individual  property  owner.  It  is  be- 
lieved, however,  that  the  omission  of  such  restrictions  is 


ADMINISTRATION  247 

justifiable.  Excess  condemnation  in  the  United  States  is 
still  in  the  experimental  stage.  Most  of  the  problems 
connected  with  it  can  be  solved  wisely  and  finally  only 
through  actual  experience.  Owing  to  some  of  the  un- 
avoidable speculative  features  of  the  policy,  it  is  impor- 
tant that  those  charged  with  carrying  it  into  eflfect  be 
given  as  high  a  degree  of  discretionary  power  as  is  pos- 
sible. It  is  true  that  discretionary  power  carries  with  it 
a  danger  of  abuse;  but  it  is  also  true  that  a  policy  like 
excess  condemnation,  when  robbed  of  its  flexibility,  may 
prove  not  only  futile  but  also  positively  harmful.  It  is 
submitted,  therefore,  that  the  hands  of  the  legislature 
should  be  tied  as  little  as  possible  in  their  task  of  giving 
effect  to  the  constitutional  grant  of  the  power  of  excess 
condemnation.  As  the  practical  problems  connected  with 
the  working  of  that  system  are  met  and  solved,  expe- 
rience may  indicate  the  wisdom  of  incorporating  in  the 
constitutional  grant  additional  limitations  upon  the  power 
therein  conferred. 

After  the  power  of  excess  condemnation  has  been  em- 
bodied in  a  provision  of  the  state  constitution,  there  still 
remains  to  be  decided  the  character  and  provisions  of 
the  general  statute  to  be  enacted  by  the  legislature  under 
authority  of  that  provision.  The  problems  arising  in 
this  connection  are  much  more  numerous  and  complex 
than  those  already  considered! 

One  of  the  first  questions  that  arises  in  the  process  of 
drafting  such  a  statute  is  the  question:  what  particular 
part  of  the  machinery  of  local  government  shall  carry 
out  the  policy  of  excess  condemnation  ?  Who  is  to  work 
out  the  plans  to  be  followed  in  an  excess  condemnation 
undertaking ;  what  authority  should  approve  those  plans ; 
by  what  agency  should  they  be  carried  out?  Is  it  neces- 
sary or  advisable  that  any  or  all  of  these  duties  be 
17 


248  EXCESS  CONDEMNATION 

turned  over  to  a  specially  constituted  organ  of  govern- 
ment, or  should  they  all  be  added  to  the  duties  of  already 
existing  administrative  agencies? 

Taking  up  these  questions  in  order,  to  whom  should 
be  committed  the  task  of  drafting  the  plan  for  a  project 
of  excess  condemnation?  It  vv^ill  hardly  be  denied  that 
a  venture  of  this  sort  should  not  be  entered  upon  with- 
out a  plan.  The  adequate  protection  of  the  rights  of  the 
individual  citizen,  the  welfare  of  the  public  as  well  as 
sound  business  principles,  all  demand  that  before  the  city 
embarks  upon  a  project  of  excess  condemnation  it  should 
have,  not  a  vague  and  general  idea  of  what  it  purposes  to 
do  and  how  it  purposes  to  do  it,  but  a  concrete,  definite, 
detailed,  black-and-white  statement  which  may  be  ex- 
amined, criticized  and  if  need  be  modified.  Two  main 
policies  have  been  followed  in  the  various  states  and  cities 
to  provide  for  the  creation  of  such  a  plan.  In  the  first  of 
these,  the  whole  power  of  excess  condemnation  from  be- 
ginning to  end  is  turned  over  to  the  control  of  the 
municipal  council."  It  is  doubtless  contemplated  that 
under  such  an  arrangement  a  committee  of  the  council 
would  work  out  a  plan  which  would  be  submitted  for 
approval  to  the  whole  body.  This  is  what  would  hap- 
pen, for  example,  if  the  Board  of  Estimate  and  Appor- 
tionment of  the  city  of  New  York  were  to  exercise  its 
power  of  excess  condemnation.  In  certain  cases,  pro- 
visions of  this  first  kind  are  made  more  definite  by  the 

11  Pennsylvania  (1907);  Maryland  (1908);  Wisconsin  (1909); 
New  York  (1911,  1914,  191S)  ;  Oregon  1913.  In  Virginia  (1906)  ; 
Massachusetts  (1912:  Ch.  186,  1913:  Chs.  201,  326,  703)  ;  Toronto 
(1911),  nothing  is  said  in  regard  to  this  matter.  Apparently 
the  intention  was  to  leave  it  in  the  hands  of  the  council.  The  Ohio 
amendment  confers  the  power  of  excess  condemnation  upon  all 
cities,  both  home  rule  and  others.  The  home  rule  cities  could 
work  out  these  administrative  problems  in  their  charters  while 
other  cities  would  solve  such  problems  through  the  city  council. 


ADMINISTRATION  249 

requirement  that  a  definite  plan  prepared  by  the  city  en- 
gineer must  be  on  file  before  the  city  proceeds  with  its 
undertaking.^^  In  these  instances,  however,  there  is  no 
intimation  that  the  city  engineer  shall  have  any  discre- 
tionary power  which  will  enable  him  to  determine  the 
character  of  the  plan  which  he  draws  up.  He  performs 
in  this  connection  a  purely  ministerial  function.  This 
first  method  of  drafting  a  plan  for  an  excess  condemna- 
tion project  proceeds  upon  the  assumption  that  that  task 
can  be  adequately  and  effectively  performed  by  men 
possessing  no  special  experience  or  unusual  ability.  It  is 
merely  a  legislative  policy  calling  for  the  same  kind  of 
consideration  which  is  given  to  the  general  run  of  more 
or  less  technical  ordinances. 

A  second  scheme  for  the  working  out  of  such  a  plan 
has  been  adopted  in  some  states  and  cities.  This  scheme 
rests  upon  the  assumption  that  the  task  of  outlining  a 
plan  for  the  guidance  of  the  city  in  its  exercise  of  the 
power  of  excess  condemnation  is  one  that  calls  for  skill 
and  experience  which  is  attainable  only  in  a  specially  con- 
stituted board  or  commission.  Consequently  one  finds 
this  important  duty  imposed  upon  such  organizations  as  a 
city  planning  commission  or  a  board  of  public  land  com- 
missioners.^^ This  does  not  mean  that  the  powers  given 
to  these  boards  are  either  final  or  exclusive.  In  some 
cases  their  advice  must  be  sought  in  the  matter  of  draw- 
ing up  the  plans  for  the  use  of  excess  condemnation  but 
need  not  be  followed.  In  other  cases  their  approval  of 
those  plans  is  necessary  to  put  them  into  force.  They 
may  not  have  the  positive  power  of  determining  the  de- 
tails of  the  plan  itself,  but  they  can  at  least  exert  a 

12  Massachusetts   (1913 :  Ch.  201);  New  York   (1914). 

13  New  Jersey  (1870);  Connecticut  (1907);  Wisconsin  (1909, 
1911);  Montreal   (1913)  ;  Ottawa  (tentative  law,  1914). 


250  EXCESS  CONDEMNATION 

strong  pressure  in  the  matter  of  controlling  its  char- 
acter by  placing  their  veto  upon  things  that  are  objection- 
able, or  voicing  their  protest  against  them. 

Whether  one  is  inclined  to  favor  the  one  or  the  other 
of  these  two  schemes  will  depend  largely  upon  his  con- 
ception of  the  character  of  the  function  of  drawing  up  the 
kind  of  plans  necessary  in  these  cases.  If  the  task  is  one 
which  calls  merely  for  good  common  sense  and  sound 
business  judgment,  there  is  no  compelling  reason  why  the 
city  council  or  one  of  its  committees  should  not,  with  the 
assistance  of  the  city  engineer,  perform  that  task.  If, 
however,  this  kind  of  work  requires  something  in  the  way 
of  technical  knowledge  and  experience  which  the  aver- 
age man  does  not  have,  then  the  city  should  be  willing  to 
call  in  the  services  of  men  who  are  thus  trained  and  are 
familiar  with  the  problems  which  need  to  be  solved. 

There  is  no  gainsaying  the  fact  that  American  cities 
have  sometimes  suffered  seriously  from  an  overdose  of 
expert  advice,  and  have  occasionally  relied  for  guidance 
upon  men  whose  narrow  specialization  has  blinded  them 
to  the  broader  needs  of  the  community.  This  has  hap- 
pened occasionally  with  the  problems  of  city  planning  and 
general  municipal  improvement.  It  would  certainly  be 
a  plan  of  doubtful  wisdom  to  turn  over  the  problem  of 
working  out  a  scheme  involving  the  use  of  excess  con- 
demnation to  a  man  or  group  of  men  who  were  merely 
interested  in  the  esthetic  gains  which  might  accrue  from 
such  an  undertaking.  But  this  it  is  unnecessary  to  do. 
It  is  possible  and,  it  is  believed,  desirable,  to  organize  a 
group  of  men  to  perform  this  important  service  who 
have  the  sort  of  training  and  experience  necessary  for 
the  task,  and  at  the  same  time  have  a  high  degree  of 
practical  business  sense  and  imagination  enough  to  plan 
wisely  for  the  future  needs  of  the  city.    Many  cities 


ADMINISTRATION  251 

have  created  city-planning  commissions  of  this  type,  and 
the  suggestion  is  made  that  to  this  sort  of  body  should 
be  given  the  work  of  making  the  plans  for  projects  of 
excess  condemnation. 

It  is  not  desirable  to  make  this  sort  of  commission  the 
only  source  from  which  any  suggestion  for  the  use  of 
excess  condemnation  should  emanate;  but  it  should  be 
given  the  right  to  initiate  such  plans  and  present  them 
to  an  appropriate  political  authority  for  approval.  On 
the  other  hand  it  should  be  made  impossible  for  the 
municipal  council  to  adopt  any  scheme  involving  the 
policy  of  condemning  land  in  excess  without  previously 
securing  the  approval  of  this  body.  In  practice  it  would 
probably  become  an  agency  which  would  work  out  plans 
for  such  undertakings  at  the  request  of  the  council.  In 
short  it  would  have  a  general  veto  power  which  it  could 
exercise  to  control  the  character  of  such  schemes  for 
public  improvement. 

While  the  character,  composition  and  organization  of 
such  a  planning  commission  need  not  be  discussed  in 
great  detail,  its  general  features  may  be  roughly  mapped 
out. 

It  should,  in  the  first  place,  be  a  body  in  which  all  of 
the  viewpoints  necessary  to  the  drafting  of  a  wise  and 
practical  plan  for  public  improvement  should  be  repre- 
sented. Precisely  what  persons  or  officials  this  might 
include  need  not  be  finally  settled  here;  but  it  would  be 
proper  to  make  the  mayor,  the  city  engineer  and  perhaps 
one  of  the  financial  authorities  of  the  city  ex  officio  mem- 
bers. In  addition  there  should  be  persons  familiar  with 
city-planning  problems  and  the  intricacies  of  real  estate 
transactions. 

It  is,  of  course,  unnecessary  to  say  that  every  efi"ort 
should  be  made  to  make  this  commission  non-partisan 


252  EXCESS  CONDEMNATION 

and  non-political.  By  a  system  of  long  terms  and  par- 
tial renewal  for  those  who  are  not  ex  officio  members,  a 
certain  permanence  and  weight  of  experience  will  be  ac- 
quired which  will  be  of  the  utmost  value.  It  is  possible 
that  a  permanent  city-planning  advisor  might  be  attached 
to  such  a  body  after  the  fashion  of  the  city-planning  ad- 
visor of  the  Commission  of  Conservation  in  Canada.  It 
is  submitted  that  such  a  group  of  men  would  be  able,  by 
reason  of  their  experience,  training  and  insight,  to  sug- 
gest the  way  in  which  the  important  power  of  excess 
condemnation  may  be  employed  most  wisely  and  to  draft 
the  necessary  plan. 

While  it  is  thus  desirable  to  have  the  plans  for  projects 
involving  the  use  of  excess  condemnation  drawn  up  by  a 
special  body  adapted  to  such  a  task,  it  is  not  necessary  to 
create  any  new  municipal  organization  for  the  approval 
of  such  plans.  Obviously,  the  special  commission  above 
described  should  not  be  given  the  power  to  effectuate 
their  plans  without  such  approval.  When  the  execu- 
tion of  a  policy  calls  for  the  exercise  of  the  power  of 
eminent  domain,  the  outlay  of  large  sums  of  money  and 
the  imposition  of  taxes  or  special  assessment  charges,  it 
must  receive  its  final  sanction  from  the  policy  deter- 
mining authorities  of  the  city.  Any  proposal  for  the  ap- 
plication of  the  excess  condemnation  principle  should 
ultimately  be  embodied  in  a  municipal  ordinance.  It  is 
perfectly  true  that  city  councils  have  sometimes  been 
guilty  of  gross  corruption  and  neglect  of  the  public  wel- 
fare in  adopting  measures  for  the  construction  of  public 
improvements.  When,  however,  the  plans  for  such  proj- 
ects are  worked  out  or  scrutinized  by  an  independent  and 
expert  commission,  the  legislative  department  of  the  city 
will  have  small  incentive  to,  or  opportunity  for,  dis- 
honest practices.     Under  such  a  system  the  city  council 


ADMINISTRATION  253 

may  be  safely  and  wisely  intrusted  with  the  final  ap- 
proval of  such  plans. 

It  might  be  mentioned,  in  passing,  that  there  need  be 
no  system  of  popular  approval  for  the  plans  of  such 
projects.  Adequate  provision  should  be  made  by  law  to 
permit  persons  whose  interests  are  affected  to  appear  be- 
fore the  planning  commission  or  the  city  council  or  both 
and  there  present  their  claims.  Nothing  more  seems 
necessary  to  the  adequate  protection  of  private  rights. 
To  make  the  validity  of  the  plan  contingent  upon  any 
sort  of  popular  referendum,  save  of  course  the  approval 
that  might  be  necessary  for  a  bond  issue,  would  be  to 
burden  the  electorate  with  the  solution  of  a  highly  de- 
tailed and  somewhat  technical  problem  in  respect  to 
which  their  opinion  would  probably  not  be  of  great  value. 

It  is  worth  noting  that  in  the  countries  of  Europe, 
and  even  in  Canada,  cities  are  subjected  to  control 
by  the  central  administrative  authorities  in  matters  re- 
lating to  the  planning  of  public  improvements.  Every 
exercise  of  the  power  of  condemning  remnants  of  land  in 
the  city  of  Paris  must  be  sanctioned  by  the  Council  of 
State.^*  In  England  the  power  of  condemning  land  in 
excess  is  granted  in  most  cases  only  by  special  act  of 
Parliament,  a  process  involving  usually  a  hearing  more 
or  less  judicial  in  character  before  a  parliamentary  com- 
mittee. Should  this  power  be  used  in  connection  with 
the  authority  conferred  by  the  Town  Planning  Act  of 
1909,  the  scheme  of  the  projected  undertaking  would 
have  to  be  approved  by  the  local  government  board.  In 
Germany,  any  exercise  of  the  power  of  replotting  land 
{Umlegung)  is  subject  to  the  approval  of  the  Minister  of 
the  Interior.  Without  entering  upon  an  extended  dis- 
cussion of  this  question,  it  may  be  said  that  all  of  these 

1*  Supra,  p.  54ff. 


254  EXCESS  CONDEMNATION 

requirements  for  the  approval  by  the  central  administra- 
tive authorities  of  excess  condemnation  projects,  as  well 
as  other  undertakings  for  public  improvements  in  cities, 
are  not  an  innovation.  They  are  merely  a  natural  part 
of  a  system  under  which  the  central  authorities  exercise 
an  administrative  control  over  municipalities  in  a  large 
number  of  matters.  With  that  type  of  central  control 
American  municipalities  are  unfamiliar.  Seeking,  as 
they  are,  emancipation  from  the  domination  of  the  state 
legislature,  it  is  unlikely  that  they  would  look  with  favor 
upon  this  European  type  of  regulation  by  the  state. 
And  the  exercise  of  that  supervision  would  necessitate 
the  creation  in  the  state  government  of  an  entirely  new 
system  of  administrative  machinery.  If  the  time  does 
come,  however,  when  American  states  subject  their  cities 
to  any  form  of  general  administrative  control,  as  dis- 
tinguished from  the  special  control  that  is  now  estab- 
lished in  many  states  over  certain  local  activities,  the 
planning  of  projects  which  involve  the  use  of  excess 
condemnation  might  well  be  made  one  of  the  matters 
to  receive  that  central  supervision.  Until  that  time,  the 
approval  of  the  political  authorities  of  the  city  must  serve 
as  the  final  sanction  for  such  schemes. 

The  question  whether  the  carrying  out  of  a  plan  of 
excess  condemnation  should  be  intrusted  to  some  special 
governmental  agency  is  one  that  may  readily  be  disposed 
of.  The  task  of  putting  these  projects  into  effect  may 
be  difficult  and  complex,  but  those  difficulties  and  com- 
plexities are  in  the  main  not  peculiar  to  excess  condem- 
nation undertakings  as  compared  with  other  public  im- 
provement enterprises.  If  such  plans  are  carefully  and 
wisely  drawn,  there  seems  to  be  no  good  reason  why  their 
execution  should  not  be  committed  to  that  municipal 
agency  or  department  which  ordinarily  has  charge  of  the 


ADMINISTRATION  255 

construction  of  public  works.  In  several  instances  the 
planning  commission  itself  is  authorized  to  put  its  plan 
into  effect/^  but  in  most  instances  the  regularly  estab- 
lished administrative  agencies  are  utilized  to  that  end. 
It  is  possible  that  the  planning  commission  might  wisely 
be  given  some  functions  of  supervision  over  the  carry- 
ing out  of  the  plans  they  have  drawn.  Experience  will 
show  which  of  these  methods  is  most  satisfactory  and 
the  only  a  priori  conclusion  ventured  is  that  there  would 
seem  to  be  no  obvious  advantage  accruing  from  the  crea- 
tion of  an  entirely  new  agency  for  this  purpose. 

After  one  has  reached  an  opinion  as  to  what  municipal 
authorities  should  exercise  the  power  of  planning,  ap- 
proving and  carrying  through  a  scheme  of  excess  con- 
demnation, there  remain  to  be  considered  several  prob- 
lems relating  to  the  limits  within  which  a  city's  power  to 
utilize  that  policy  ought  to  be  confined  by  general  stat- 
ute. 

In  the  first  place,  ought  a  city  to  be  allowed  to  use 
excess  condemnation  in  connection  with  the  construction 
of  any  and  every  kind  of  public  improvement?  It  has 
already  been  urged  that  a  constitutional  provision  grant- 
ing this  power  ought  not  to  attempt  to  enumerate  the 
kinds  of  projects  for  which  it  may  be  used.  Without 
further  discussion,  it  may  be  suggested  that  the  same 
rule  should  apply  to  a  statute  embodying  this  power  and 
for  the  same  reasons  presented  above.^"  A  municipality 
should  be  left  free  to  utilize  the  policy  for  such  pur- 
poses as,  in  its  discretion,  it  deems  wise.  It  is  believed 
that  as  soon  as  excess  condemnation  has  emerged  some- 

15  In  New  Jersey  (1870);  Connecticut  (1907);  Wisconsin 
(1909,  191 1 )  the  council  is  authorized  to  give  the  commission  this 
power  if  it  does  not  interfere  with  the  functioning  of  any  regularly 
organized  department  of  the  city  government, 

^^  Supra,  p.  243 ff. 


256  EXCESS  CONDEMNATION 

what  from  the  experimental  stage  in  this  country,  this 
is  the  kind  of  statute  which  will  be  enacted. 

There  arises  next  the  question,  how  should  the  city 
acquire  the  land  which  it  takes  in  excess  of  its  actual 
needs?  It  will  probably  be  admitted  at  the  outset,  by 
every  one,  that  the  city  must  in  all  cases  acquire  the  fee 
to  the  property  it  takes.  While  there  may  be  cases  in 
which  the  municipality  may  for  certain  purposes  wisely 
limit  itself  to  the  condemnation  of  an  easement,  the  fact 
remains  that  it  would  be  practically  impossible  for  a  city 
to  carry  through  a  project  of  excess  condemnation  were 
it  to  acquire  conditional  title  to  the  surplus  land.  Most 
constitutional  provisions  and  statutes  have  been  content 
to  assume  that  point ;  and  where  it  is  mentioned,  one 
finds  the  stipulation  that  nothing  less  than  the  fee  to  any 
such  property  must  be  taken  by  the  municipality. 

The  property  itself  would,  of  course,  be  acquired  by 
the  exercise  of  the  right  of  eminent  domain.  It  is  cer- 
tainly no  part  of  the  program  of  excess  condemnation  to 
evolve  a  new  system  of  condemnation  proceedings  and  in 
no  case  has  any  attempt  been  made  to  do  so.  Muncipali- 
ties  use  the  same  methods  of  condemning  land  in  excess 
that  they  use  for  condemning  land  actually  needed.  It 
is  well  enough  to  face  the  fact  clearly,  however,  that 
excess  condemnation  involves  the  exercise  of  the  right 
of  eminent  domain  on  an  unprecedentedly  large  scale, 
and  for  that  reason  any  defects  in  the  method  of  con- 
demning land  will  be  greatly  magnified  in  these  more  ex- 
tensive undertakings.  A  wasteful  and  haphazard  system 
of  procedure  is  bad  enough  when  applied  to  the  smallest 
taking  of  land,  but  when  used  for  condemning  land  in 
excess  it  becomes  a  source  of  loss  and  injustice  that 
cannot  be  tolerated.  It  is  doubtless  true  that  there  are 
many  cities  in  the  United  States  where  much  time  is  lost 


ADMINISTRATION  257 

in  condemning  land  because  of  long  drawn  out  litiga- 
tion, and  where  much  money  is  lost  both  in  the  form  of 
legal  costs  of  procedure  and  excessive  awards  of  com- 
pensation. A  possible  desire  to  use  excess  condemnation, 
however,  should  not  constitute  the  city's  only  reason  for 
reforming  such  a  system. 

It  is  hardly  necessary  to  add  that  the  city  should  be 
given  the  power  to  acquire  surplus  lands  by  gift,  or  pur- 
chase, or  by  exchanging  for  them  land  which  it  already 
owns.  In  none  of  these  cases,  of  course,  would  the  city 
be  exercising  the  power  of  excess  condemnation.  In 
many  places,  furthermore,  the  city  already  possesses  the 
power  to  acquire  land  in  these  ways.  Such  power  may 
be  regarded  as  necessarily  incidental  to  that  of  condemn- 
ing land  in  excess  and  might  perhaps  be  assumed  to  be 
included  in  that  broader  power  even  without  a  specific 
grant  in  words.  But  it  would,  doubtless,  be  wiser  to 
specify  in  a  general  statute  that  the  municipality  may  ac- 
quire excess  land  by  condemnation,  gift,  purchase,  or 
exchange." 

It  was  suggested  above  that  so  far  as  the  provisions 
of  the  constitution  were  concerned,  the  state  legislature 
ought  not  to  be  limited  as  to  the  amount  of  excess  land 
which  it  might  authorize  a  city  to  condemn.     By  experi- 

1'^  No  American  provision  for  excess  condemnation  has  thus  far 
granted  to  cities  the  right  to  acquire  surplus  property  by  exchange. 
That  power  is  not  substantially  different,  however,  from  the  power 
of  purchase.  It  does,  however,  involve  the  right  on  the  part  of  a 
city  to  dispose  of  property,  a  right  which  cities  in  many  cases  do 
not  have.  Where  it  does  have  such  authority  to  sell,  it  is  hard  to 
see  how  a  city  which  had  determined  to  effect  such  an  excliange 
could  be  prevented  from  doing  so,  although  it  might  have  to  resort 
to  the  formality  of  sale  and  purchase.  The  principle  is  the  same. 
Recent  English  statutes  have  definitely  sanctioned  exchanges  made 
without  the  passing  of  money.  London  County  Council  (Improve- 
ments) Act  1899;  The  Mall  Approach  (Improvement)  Act  1914. 
This  whole  question  is  discussed  at  a  later  point.    See  Infra,  p.  265. 


258  EXCESS  CONDEMNATION 

ment  only  can  it  be  finally  decided  whether  such  a  limita- 
tion is  necessary  or,  if  it  is  necessary,  what  its  character 
should  be.  It  is  quite  difficult  to  decide  whether  the 
state,  in  turn,  ought  to  place  a  definite  restriction  in  this 
regard  upon  the  city.  While  the  same  argument  used  to 
justify  the  omission  of  such  a  limitation  upon  the  state 
might  be  urged  in  behalf  of  the  same  freedom  for  the 
municipality,  it  is  quite  unlikely  that  any  state  would  be 
willing  to  see  its  cities  given  absolutely  free  rein  in  such 
a  matter.  Abuse  and  indiscretion  would  be  far  more 
probable  on  the  part  of  the  city  which  actually  exercised 
the  power  of  excess  condemnation,  than  on  the  part  of 
the  state  legislature  which  merely  authorized  the  exer- 
cise of  that  power.  The  state  ought  therefore  to  set 
some  outside  limit  to  the  amount  of  land  which  its  munici- 
palities may  condemn  in  excess.  What,  then,  shall  that 
limit  be? 

Two  definite  ways  in  which  the  amount  of  surplus  land 
which  a  city  may  take  has  actually  been  limited  in  dif- 
ferent states  and  municipalities  have  already  been  men- 
tioned.^* The  difference  between  them  is  probably  due 
to  the  difference  in  the  problems  which  excess  condem- 
nation is  expected  to  solve  in  different  places.  Those 
provisions  which  stipulate  that  the  city  shall  take  only  so 
much  excess  land  as  is  necessary  to  form  suitable  build- 
ing sites  abutting  the  improvement  were  doubtless 
framed  with  the  idea  that  the  power  of  excess  condem- 
nation would  be  used  primarily  for  the  purpose  of  re- 
plotting  the  land  skirting  an  improvement  so  as  to  do 
away  with  remnants  of  land  and  make  possible  the  ade- 
quate development  of  the  street.  This  idea  seems,  cer- 
tainly, to  have  been  uppermost  in  the  minds  of  the  men 
who  fathered  the  New  York  provision.     On  the  other 

18  Supra,  p.  244flf. 


ADMINISTRATION  259 

hand,  those  provisions  which  Umit  the  excess  land  which 
a  city  may  take  to  a  zone  a  definite  number  of  feet  in 
depth/^  seem  to  have  been  framed  with  two  thoughts  in 
mind:  one,  the  adequate  protection  of  the  beauty,  Hght, 
air  or  view  of  the  improvement,  the  other,  the  securing 
to  the  pubHc  treasury  the  amount  of  the  accretion  in  the 
value  of  as  much  land  as  could  be  expected  to  be  measur- 
ably benefited  by  the  construction  of  the  public  improve- 
ment. The  conclusion  has  been  reached,  in  an  earlier 
chapter,  that  excess  condemnation  ought  not  to  be  em- 
ployed by  a  public  authority  for  the  sole  purpose  of  mak- 
ing money.  The  problem  narrows  itself  down,  there- 
fore, to  the  question  of  framing  a  limitation  on  the 
amount  of  excess  'land  which  may  be  taken,  liberal 
enough  to  assure  the  protection  of  beauty  and 
usefulness  of  the  improvement  and  the  allotment  of 
suitable  building  sites,  but  not  so  liberal  as  to  permit 
abuse. 

There  are  several  objections  to  the  policy  of  putting  a 
definite  numerical  limit  upon  the  number  of  feet  of  ex- 
cess land  which  a  municipality  may  condemn.  The  first 
objection  lies  in  the  difficulty  of  deciding  what  that 
numerical  limit  shall  be.  Acts  have  already  been 
passed  in  various  states  setting  this  limit  at  one  hun- 
dred and  twenty-five,^°  one  hundred  and  fifty,^^  one  hun- 
dred and  sixty,-^  two  hundred,-^  and  three  hundred  feet  ^* 
respectively.     Which  one  of  these  restrictions  should  be 

18  As  200  feet  in  the  Pennsylvania  act  of  1907 ;  or  300  feet  in 
Wisconsin  act  of  191 1,  Chap.  486. 

20  Massachusetts,  1913,  Ch.  703. 

21  Massachusetts,  1913,  Ch.  201. 

22  Massachusetts,  1912,  Ch.  186. 

23  Pennsylvania,  1907;  Massachusetts,  1913,  Ch.  778;  Oregon, 
I913;  Ontario,  1911  (Toronto);  Ottawa,  1914,  (tentative  law). 

^*  Wisconsin,  191 1. 


26o  EXCESS  CONDEMNATION 

incorporated  into  a  general  statute?  The  second  ob- 
jection to  this  type  of  restriction  is  its  lack  of  elasticity. 
It  may  be  that  in  most  cases  a  city  will  have  no  occa- 
sion to  condemn  more  than  two  hundred  feet  of  land  on 
either  side  of  an  improvement.  It  may  not  as  a  rule  con- 
demn as  much  as  that.  On  the  other  hand,  occasion 
might  arise,  in  connection  with  the  creation  of  terminal 
facilities  or  water-front  development,  that  suitable  build- 
ing sites  for  adequate  warehouses  or  similar  structures 
would  be  much  more  than  two  hundred  feet  in  depth. 
In  such  a  case,  an  inelastic  restriction  might  prevent  or 
seriously  retard  the  accomplishment  of  the  city's  pur- 
pose in  making  the  improvement.  In  the  third  place,  an 
arbitrary  limit  thus  placed  upon  the  amount  of  surplus 
land  which  may  be  taken  might  make,  along  the  extremi- 
ties of  the  zone,  simply  a  new  series  of  remnants  because 
the  city  would  be  prevented  from  acquiring  the  whole  of 
a  plot  only  part  of  which  it  needed  to  condemn. 

It  may  be  argued,  however,  that  if  a  city  were  never 
permitted  to  take  more  land  in  excess  than  is  actually 
necessary  to  secure  suitable  building  sites  it  would  find 
itself  unable  to  protect  adequately  the  beauty  and  use- 
fulness of  such  public  improvements  as  parks  and  boule- 
vards. In  other  words,  neither  one  of  these  two  types  of 
restrictions,  taken  by  itself,  satisfactorily  meets  the  whole 
problem. 

In  order  to  meet  this  difficulty,  the  following  proposal 
is  made  for  a  restriction  upon  the  amount  of  land  which 
may  be  condemned  in  excess.  It  will  be  recognized  as  a 
composite  of  two  provisions  already  in  force,^^  Under 
its  authority  a  municipality  would  be  given  the  right  to 
condemn  enough  surplus  land:  (i)  to  form  suitable 
building  sites  abutting  on  any  public  improvement;  and 

25  New  York,  Maryland. 


ADMINISTRATION  261 

(2)  such  adjacent  land  in  addition  as  it  may  be  deemed 
necessary  or  beneficial  to  subject  to  lawful  restrictions 
or  control,  in  order  better  to  protect  the  beauty,  light, 
air,  view  or  usefulness  of  the  improvement.  Under  the 
first  part  of  this  provision,  a  city  would  be  free  to  take 
land  abutting  on  a  street  for  the  purpose  of  securing  ade- 
quate building  plots,  when  it  had  no  desire  to  subject  that 
land  once  replotted  to  any  form  of  control.  The  second 
part  gives  power  to  condemn  as  much  land  as  the  city 
would  actually  care  to  control  through  building  restric- 
tions. In  either  case,  the  city  would  be  limited  in  the 
amount  of  land  it  took  to  what  was  necessary  to  accom- 
plish a  definite  and  legitimate  purpose.  It  would  be  given 
sufficient  freedom,  however,  adequately  to  accomplish 
that  purpose. 

Another  important  question  which  comes  up  in  fram- 
ing a  general  excess  condemnation  statute  is:  what  shall 
be  done  with  the  surplus  land  which  a  municipality  has 
acquired?  The  three  possibilities  in  this  direction  are, 
of  course,  sale,  lease  and  exchange;  but  there  are  many 
problems  connected  with  each  one  which  need  to  be  ex- 
amined somewhat  carefully. 

From  the  point  of  view  of  administration,  it  does  not 
make  much  difference  to  a  municipality  whether  it  sells 
or  leases  the  surplus  land  which  it  holds.  It  is  probable 
that  American  cities  would  be  more  inclined  to  sell  such 
land  outright,  since  most  of  them  have  had  little  or  none 
of  the  experience  of  European  municipalities  in  the 
ownership  or  management  of  land.  It  might  very  well 
be,  however,  that  a  city  would  prefer  to  lease,  rather  than 
sell,  certain  plots  of  land  which  it  felt  that  it  might,  at 
some  future  time,  have  occasion  to  devote  to  a  public  use. 
But  such  procedural  requirements  and  restrictions  as 
might  be  placed  upon  the  municipality  in  the  matter  of 


262  EXCESS  CONDEMNATION 

selling  surplus  land  would  apply  equally  to  the  leasing  of 
that  land. 

There  are  three  methods  by  which  a  city  might  be  au- 
thorized to  sell  or  lease  land  which  it  had  condemned  in 
excess.  The  first  of  these  is  by  private  contract  with  a 
purchaser  without  any  public  formality ;  the  second  is  by 
sale,  after  due  advertisement,  to  the  person  who  sends  in 
the  highest  sealed  bid ;  and  the  third  is  by  public  auction. 

The  first  of  these  methods  is  open  to  serious  objection 
on  three  grounds.  To  allow  the  public  authorities  of  a. 
city  to  sell  or  lease  land  by  private  agreement  without 
publicity  and  without  competition,  is  to  open  the  door  to 
favoritism  and  corruption.  Nothing  is  more  demoraliz- 
ing to  efficient  administration  and  official  integrity  than 
the  uncontrolled  authority  to  dispense  favors  and  privi- 
leges. The  facts  already  presented  regarding  the  unsav- 
ory operations  of  the  Metropolitan  Board  of  Works  of 
London  in  disposing  of  lands  taken  for  purposes  of  re- 
coupment ^'^  indicate  dangers  which  may  well  result  from 
conferring  uncontrolled  discretion  in  this  matter  upon  the 
public  authorities.  In  the  second  place,  the  private  sale 
of  surplus  lands,  by  eliminating  competition,  gives  the 
city  no  assurance  that  the  price  received  for  such  lands 
is  the  best  price  obtainable.  Finally,  this  method  is  very 
apt  to  take  away  from  the  former  owner  of  the  surplus 
lands  any  chance  of  buying  back  again  his  original  loca- 
tion. He  may  not  even  be  permitted  to  make  an  oflfer 
which  will  be  seriously  considered  by  the  public  authori- 
ties. A  municipality  should  not  be  permitted  to  dispose 
of  excess  land  by  a  method  which  is  thus  liable  to  abuse, 
and  is  unfair  to  the  original  owner  of  such  land. 

The  two  remaining  methods  of  disposing  of  public 
property,  i.e.,  by  advertising  for  bids  and  by  holding  a 

28  Supra,  p.  164. 


ADMINISTRATION  263 

public  auction,  may  be  discussed  together.  In  either  case 
the  sale  is  conducted  in  a  manner  capable  of  adequate 
regulation  against  fraud  and  collusion,  while,  through 
the  influence  of  competition,  the  price  which  the  public 
receives  under  normal  conditions  will  approximate  the 
actual  value  of  the  land.  Which  one  of  the  two  methods 
should  in  any  given  case  be  employed  is  a  question  which 
may  well  be  left  to  the  discretion  of  the  municipalities  to 
be  settled  in  the  light  of  existing  conditions.  As  a  rule, 
the  auction  sale  will  probably  afford  the  best  results  when 
the  land  to  be  sold  or  leased  comprises  numerous  plots  of 
fairly  low  value.  It  would  be  unprofitable  to  undertake 
to  suggest,  in  detail,  the  rules  and  regulations  which 
would  need  to  be  drawn  up  to  govern  such  auctions  and 
public  sales.  It  is  sufficient  to  indicate  two  important 
requirements  that  should  be  attached  to  any  such  pro- 
gram for  thus  disposing  of  lands  condemned  in  excess. 

The  first  of  these  stipulations  is  one  which  will  pro- 
voke no  particular  dispute.  It  is  merely  a  provision  that 
if  the  prices  offered  for  the  surplus  lands,  either  in  the 
sealed  bids  submitted  or  at  the  public  auction,  are  too  low 
to  justify  the  municipality  in  accepting  them,  the  public 
authorities  should  have  the  power  to  call  off  the  sale  and 
advertise  for  new  offers.  Thus  the  city  would  be  pro- 
tected against  the  results  of  collusion  among  those  seek- 
ing to  purchase  the  lands  at  a  price  unreasonably  low. 

The  second  restriction  placed  upon  the  method  of  sell- 
ing or  leasing  surplus  lands  is  one  already  mentioned,  de- 
signed to  protect  the  interests  of  the  former  owner.  It 
would  stipulate  that  such  an  owner  should  be  guaranteed 
the  privilege  of  buying  back  his  former  property,  pro- 
vided he  is  willing  to  equal  the  best  offer  the  city  re- 
ceives for  that  property,  and  provided  the  terms  and  con- 
ditions of  sale  are  satisfactory  to  the  city.  Under  such 
18 


264  EXCESS  CONDEMNATION 

a  regulation,  the  city  would  probably  carry  through  its 
projects  of  excess  condemnation  with  the  minimum  of  in- 
convenience to  the  owners  of  private  property  and  with- 
out prejudicing  the  interests  of  the  city.^^ 

It  is  worth  noting  that  the  public  authority,  in  thus 
favoring  the  former  owner,  does  not  do  so  at  the  ex- 
pense of  the  community  interest.  The  price  paid  must  be 
as  high,  the  restrictions  as  to  future  use  must  be  as  rigid, 
as  though  the  city  were  selling  to  one  who  had  had  no 
previous  interest  in  the  property.  In  fact,  it  might  well 
be  expected  that  such  a  concession  would  enable  the 
municipality  to  acquire  the  surplus  land,  in  the  first  place, 
at  a  much  better  price  than  it  could  secure  if  the  owner 
had  no  prospect  of  reinstatement.  If  he  knew  in  ad- 
vance that  such  an  opportunity  would  be  afforded,  the 
loss  which  he  sustained  would  be  much  less,  and  there  is 
probability  that  in  many  cases  such  an  owner  would  sell 
to  the  city  without  making  necessary  a  resort  to  con- 
demnation proceedings. 

This  proposition  does  not,  however,  escape  criticism. 
It  is  urged,  in  the  first  place,  that  such  a  system  would 
stifle  competition  in  bidding  on  the  property  which  the 
public  authorities  are  trying  to  sell  or  lease.  If  there  is 
this  definite  understanding  that  the  original  owner  of  a 
piece  of  land  may  buy  it  back  by  matching  the  best  bid 
made,  few  will  be  interested  in  submitting  bids  under 
such  conditions.  Just  how  serious  an  objection  this 
would  prove  to  be  can  be  shown  only  by  experience.  It 
is  not  easy  to  see,  however,  why  a  man  who  really  wished 
to  secure  a  piece  of  land  would  not  bid,  even  under  these 
conditions.  The  chance  of  having  his  bid  equaled  by  the 
former  owner  of  the  land  is  no  greater  than  the  chance 
of  having  if  exceeded  by  some  other  bidder.     It  is  not 

^T  Supra,  p.  ii6ff. 


ADMINISTRATION  265 

necessary,  moreover,  to  assume  that  the  former  owner 
would  always  desire  to  equal  the  bids  made. 

An  administrative  difficulty  might  be  encountered  in 
extending  this  option  to  the  original  owner  of  surplus 
land,  by  reason  of  the  fact  that  there  may  very  well 
be  several  former  owners,  when  the  plot  of  land  offered 
for  sale  is  made  by  the  merging  of  several  parcels.  This 
need  not  be  regarded  however  as  a  primary  objection. 
Some  equitable  scheme  could  be  devised  whereby  those 
who  formerly  owned  the  plots  which  have  been  combined 
might  be  given  the  privilege  of  buying  the  new  plot  in  the 
order  of  the  proportion  of  it  which  they  originally  held, 
or  it  might  be  sold  to  the  one  who  would  bid  the  highest. 

It  is  unnecessary  to  dwell  at  length  upon  the  question 
of  allowing  a  municipality  to  dispose  of  surplus  land  by 
exchange.  The  method  of  exchange  is  a  more  con- 
venient way  of  accomplishing  the  same  general  purpose 
which  might  be  achieved  by  purchase  and  sale.  It  does 
not  really  involve  a  new  principle.  There  are  frequently 
reasons  why  it  would  be  mutually  advantageous  to  the 
city  and  the  property  owner  merely  to  trade  one  plot  for 
another.  The  land  which  the  city  receives  in  return  for 
its  surplus  may  be  located  along  the  lines  of  the  same 
improvement  upon  which  the  city's  property  abuts  ^*  or 
it  may  be  situated  in  an  entirely  different  part  of  the 
city.^°  Such  exchanges  would,  however,  have  to  be  pri- 
vate and  there  would  be  no  assurance  that  the  city  might 

28  As  in  the  case  of  the  exchange  of  land  parcels  recently  ef- 
fected in  London  in  connection  with  the  Mall  Approach  improve- 
ment.   Supra,  p.  iggfF. 

2»  A  few  years  ago  the  city  of  Philadelphia  exercised  the  power 
of  excess  condemnation  to  take  a  triangle  of  land  about  three  acres 
in  area  located  at  33d  and  Ridge  Sts.  This  plot,  which  formed 
a  valuable  building  site,  the  city  later  exchanged  for  seventy-five 
acres  in  Roberts  Hollow  which  it  desired  for  park  purposes. 


266  EXCESS  CONDEMNATION 

not  enter  into  bad  bargains  or  that  the  interests  of  the 
former  owner  of  the  land  taken  in  excess  would  be  ade- 
quately protected.  For  these  reasons  the  adoption  of 
such  a  policy  by  American  cities  would  probably  be  un- 
wise.^** 

Another  general  problem  to  be  solved,  in  mapping  out 
the  lines  along  which  an  excess  condemnation  statute 
should  be  drawn,  is  that  of  settling  upon  the  restriction 
which  may  be  imposed  upon  the  future  use  of  the  land 
which  the  city  has  condemned  in  excess.  This  is  a  highly 
important  matter,  since,  perhaps  in  a  majority  of 
cases,  a  project  of  excess  condemnation  will  be  under- 
taken for  the  purpose  of  imposing  those  restrictions. 
Their  character  vitally  concerns  the  results  accomplished 
in  making  the  improvement,  the  financial  outcome  of  the 
enterprise  and  the  rights  of  the  citizens  who  through  the 
subsequent  ownership  of  the  surplus  land  will  be  sub- 
ject to  those  restrictions. 

Because  these  restrictions  are  so  vital  a  consideration, 
in  any  scheme  of  excess  condemnation,  the  question 
whether  they  shall  be  imposed  at  all,  or  what  kind  shall 
be  imposed  in  any  given  case,  should  be  turned  over  to 
the  same  planning  commission  which  works  out  the  other 
details  of  the  entire  project.  In  other  words,  these  re- 
strictions should  be  planned  and  approved  in  precisely 
the  same  way  that  the  other  parts  of  the  excess  condem- 
nation schemes  are  planned  and  approved.  The  only 
limitation  as  to  their  general  character  which  should  be 

30  The  principal  attack  launched  against  the  recent  use  of  this 
policy  in  connection  with  the  Mall  Approach  improvement  in 
London  (supra,  p.  iQQff.)  was  based  on  the  ground  that  the  public 
authorities  attempted  to  give  in  return  for  the  sites  it  needed, 
certain  lands  which  were  taken  against  the  protest  of  their  former 
owner.  In  other  words,  in  order  to  reinstate  one  owner  to  his 
satisfaction  the  city  actually  displaced  another. 


ADMINISTRATION  267 

written  into  law  is  the  stipulation  that  such  restrictions 
should  be  suitable  for  the  purpose  of  adequately  pro- 
tecting the  public  improvement  which  it  is  their  purpose 
to  protect. 

In  the  detailed  elaboration  of  these  restrictions,  a  great 
deal  must  of  necessity  be  left  to  the  discretion  of  ad- 
ministrative officials.  After  the  general  character  of  the 
restrictions  had  been  settled  upon,  approved  and  made 
public,  the  question  of  whether  or  not  the  building  plans 
of  any  individual  owner  conformed  to  those  require- 
ments could  well  be  left  to  the  decision  of  the  planning 
commission.  This  control  would  be  rendered  effective 
by  requiring  the  prospective  builder  upon  restricted  land 
to  submit  his  plans  to  the  commission  for  approval  be- 
fore beginning  any  actual  construction. 

A  general  statute  embodying  the  power  of  excess  con- 
demnation would  need,  furthermore,  to  contain  some 
provisions  bearing  upon  matters  of  finance.  Ought  such 
a  statute,  for  instance,  to  provide  how  the  money  neces- 
sary for  the  actual  work  of  making  the  improvement 
shall  be  secured?  This  question  has  ordinarily  been 
answered  in  the  negative,  and  American  states  have  been 
content  to  assume  that  cities  would  raise  the  necessary 
funds  for  excess  condemnation  projects  as  they  would 
raise  them  for  any  other  purpose.  No  peculiar  problem 
is  raised  in  this  connection  and  it  is  doubtful  if  any 
special  regulation  is  necessary  or  desirable. 

The  state  of  Ohio,  however,  has  incorporated  into  its 
constitutional  provision  for  excess  condemnation  an  in- 
teresting stipulation  regarding  the  use  of  the  credit  of  a 
municipality  for  enterprises  of  this  kind.  After  the 
usual  grant  of  the  power  to  condemn  land  in  excess,  the 
section  goes  on  to  read :  "  Bonds  may  be  issued  to  sup- 
ply the  funds  in  whole  or  in  part  to  pay  for  the  excess 


268  EXCESS  CONDEMNATION 

property  so  appropriated  or  otherwise  acquired  for  the 
improvement  and  excess,  and  they  shall  not  be  a  liability 
of  the  municipality  nor  be  included  in  any  limitation  of 
the  bonded  indebtedness  of  such  municipality  prescribed 
by  law."  ^^  The  constitutional  convention  which  adopted 
this  provision  seems  to  have  accepted  it  largely  on  faith 
from  the  hands  of  its  committee  on  municipal  govern- 
ment and  very  little  discussion  was  given  to  it.^^  Such 
meager  discussion  as  did  arise  on  this  point,  as  well  as  a 
consideration  of  the  clause  itself,  seems  to  indicate  that 
two  ideas  lay  back  of  its  proposal.  The  first  of  these 
was  the  belief  that  such  a  regulation  would  tend  to  pre- 
vent the  use  of  excess  condemnation  for  speculative  pur- 
poses. Since  the  general  credit  of  the  city  is  not  pledged 
as  security,  either  for  the  bonds  issued  for  this  purpose 
or  for  the  interest  charges  on  them,  those  bonds  will  be 
viewed  as  a  safe  investment  only  if  the  enterprise  upon 
which  the  city  seeks  to  embark  is  regarded  by  the  invest- 
ing public  as  safe  and  profitable.  If  the  city  attempted 
to  enter  upon  an  ill-advised  scheme  of  excess  condem- 
nation, it  would  find  itself  thwarted  at  the  outset  by  its 
inability  to  market  the  bonds  necessary  to  finance  the 
undertaking.  The  second  consideration  which  may  have 
actuated  the  proposal  of  this  limitation  is  the  fact  that 
such  an  arrangement  would  make  it  possible  for  a  munici- 
pality already  bonded  up  to  the  limit,  or  nearly  so,  to 
undertake  a  project  of  excess  condemnation  which  would 
otherwise  be  impossible  because  of  that  debt  limit.  Such 
disregard  of  the  limit  of  indebtedness  is,  of  course,  held 
to  be  justified  on  the  ground  that  the  excess  condem- 
nation enterprise  will  at  least  pay  its  own  way. 

31  Ohio  Constitution,  Art.  xviii,  Sec.  lo. 

32  Proceedings  and  Debates,  Ohio   Constitutional   Convention 
1912,  Vol.  ii,  pp.  1448,  1458-1459. 


ADMINISTRATION  269 

It  will  be  highly  interesting  to  see  just  what  the  real 
efifect  of  this  provision  will  be  when  it  has  been  tested  by 
actual  experience  in  the  cities  of  Ohio.  One  or  two 
criticisms  might  be  urged,  however,  against  the  general 
adoption  of  such  a  regulation.  In  the  first  place,  there 
is  a  probability  that  the  conservatism  of  the  investing 
public  might  operate  to  prevent  the  city  from  entering 
upon  excess  condemnation  projects  which  are  really  safe 
and  legitimated^  At  least  there  is  no  assurance  that  in- 
vestors could  discriminate  with  uniform  accuracy  be- 
tween highly  speculative  and  reasonably  sound  under- 
takings. Wholesome  as  the  proposed  check  might  prove 
to  be  against  ill-advised  action  on  the  part  of  the  city, 
it  is,  after  all,  the  city  which  should  finally  decide  whether 
an  excess  condemnation  undertaking  is  worth  embarking 
on  and  it  ought  not  to  be  left  helpless  to  proceed  when 
it  has  determined  to  do  so.  This  proposal  to  free  the 
general  treasury  from  any  liability  for  excess  condemna- 
tion bonds  proceeds  upon  the  false  assumption,  in  the 
second  place,  that  a  municipality  ought  never  to  engage 
in  an  excess  condemnation  project  which  is  not  profitable 
financially,  or  which  does  not  at  least  pay  its  own  ex- 
penses. Were  the  city  using  excess  condemnation  for 
the  sole  purpose  of  making  money,  that  assumption 
would  be  sound  enough.  But  it  is  very  readily  conceiv- 
able that  the  public  benefit  to  be  derived  from  an  ade- 
quate replotting  of  the  land  abutting  an  improvement  or 
a  satisfactory  protection  of  the  beauty  or  usefulness  of 
the  improvement  itself  might  be  so  great  that  a  city 
could  well  aflford  to  employ  excess  condemnation  at  a 
substantial  money  loss  in  order  to  achieve  those  results. 

88  This  has  usually  occurred  where  public  utility  bonds  are 
merely  secured  by  the  utility  property  and  not  by  the  city's 
general  credit. 


270  EXCESS  CONDEMNATION 

And  finally,  should  cases  arise  in  which  an  exercise  of 
the  power  of  excess  condemnation  which  seems  at  the 
outset  to  promise  favorable  financial  returns  results  in 
actual  loss  to  the  city,  there  seems  scant  justice  in  mak- 
ing innocent  investors  in  the  bonds  of  the  city  bear  the 
burden  of  that  loss.  It  is  the  city  and  not  the  bond- 
holder who  should  suffer  in  such  a  case.  On  the  whole, 
it  seems  better  to  allow  a  city  to  secure  the  funds  neces- 
sary for  carrying  through  a  project  of  excess  condemna- 
tion in  the  same  way  in  which  it  secures  funds  for  any 
public  improvement  scheme. 

A  financial  provision  commonly  found  in  statutes 
granting  the  power  of  excess  condemnation  is  the  stipu- 
lation that  the  returns  derived  from  the  disposal  of  the 
surplus  land  shall  be  applied  to  meet  the  cost  of  the 
project.  The  wisdom  of  such  a  requirement  is  too 
obvious  to  warrant  discussion.  It  should  be  noted,  how- 
ever, that  such  a  clause  is  not,  in  itself,  quite  adequate. 
It  does  not  contemplate  that  a  case  will  ever  arise  in 
which  the  returns  from  an  application  of  the  policy  of 
excess  condemnation  will  exceed  the  cost.  In  other 
words,  no  provision  is  made  for  any  profit  which  the  city 
might  make. 

This  raises  the  question,  of  course,  whether  it  is  neces- 
sary to  make  any  special  provision  for  the  disposition  of 
such  profits.  In  the  absence  of  any  such  regulation  cov- 
ering that  point,  any  surplus  would  automatically  go  into 
the  general  fund  of  the  city.  That  may  be  an  entirely 
satisfactory  arrangement.  Two  suggestions  present 
themselves,  however,  which  would  provide  for  a  different 
disposition  of  the  profits  which  might  accrue  from  these 
projects.  The  first  suggestion  is  to  apply  the  surplus 
derived  from  excess  condemnation  projects  to  cancel  the 
deficit  resulting  from  such  projects  as  fail.     This  could 


ADMINISTRATION  271 

readily  be  done,  of  course,  by  creating  a  special  fund 
into  which  such  money  should  be  paid.  The  second  pi^o- 
posal  for  the  disposition  of  such  surplus  is  to  devote 
it  exclusively  to  defray  the  cost  of  park  construction  and 
improvement.  While  there  is,  perhaps,  no  definite  reason 
w^hy  such  funds  should  be  applied  for  one  useful  or 
necessary  purpose  more  than  another,  there  is,  perhaps, 
some  gain  in  having  the  use  which  may  be  made  of  such 
money  fixed  by  general  statute.  This  would  remove  any 
temptation  that  might  arise  to  use  the  policy  of  excess 
condemnation  in  times  of  financial  distress  for  the  pur- 
pose of  making  money  which  would  be  available  for  gen- 
eral expenses.  Any  such  abuse  would  doubtless  be  ade- 
quately prevented  by  providing  that  any  profits  the  city 
might  make  in  this  way  might  be  appropriated  by 
the  council  for  such  projects  of  public  improvement 
as  are  approved  by  the  planning  commission  of  the 
city. 

For  purposes  of  summary,  the  essential  provisions  of 
a  general  statute  through  which  the  power  of  excess  con- 
demnation should  be  conferred  upon  the  local  public 
authorities  of  a  state  may  be  presented  in  the  following 
condensed  form: 

I.    Governmental  Authorities  to  Use  the  Power 
I.  To  draft  or  sanction  any  plan  for  use  of  excess 
condemnation: 
A   special  planning  commission: 
Ex  officio  members  —  Mayor,  city  engineer, 
etc. ;    optional   member  —  a   permanent 
advisor 
Non-partisan 
Long  terms 
Partial  renewal 


272  EXCESS  CONDEMNATION 

Authority:  to  initiate  plans;  veto  power 
on  all  plans 

2.  To  approve  plan: 

The  city  council;  the  planning  commission 

3.  To  carry  out  the  plan: 

Authorities  ordinarily  intrusted  with  that 
work  acting  under  general  supervision  of 
planning  commission 

II.    Regulations  Guiding  Exercise  of  Power  of 
Excess  Condemnation 

1.  Purposes  for  which  it  may  be  used 

To  be  applicable  to  any  kind  of  public  im- 
provement 

2.  Acquisition  of  surplus  land 

a.  All  such  property  to  be  acquired  in  fee 

b.  Method  of  acquisition 

Condemnation 
Purchase 
Gift 
Exchange 

c.  Amount  of  surplus  which  may  be  taken 

Enough  to  form  suitable  building  sites 
abutting  on  improvement;  and  adja- 
cent land,  in  addition,  the  use  of 
which  it  may  be  deemed  wise  or  nec- 
essary to  control  through  the  imposi- 
tion of  restrictions 

3.  Disposition  of  surplus  land 

a.  Methods  of  disposition 
Sale 
Lease 


ADMINISTRATION  273 

b.  Restrictions  on  city  in  disposing  of  sur- 

plus land 

Advertised  bids  or  public  auction,  prop- 
erty may  be  withdrawn  from  sale  if 
bids  are  unreasonably  low. 

Former  owner  to  be  given  opportunity 
to  buy  back  his  land  at  a  price  equal 
to  the  best  offer  received  by  the  city 
and  upon  terms  and  under  conditions 
satisfactory  to  the  city 

c.  Restrictions     on     future     use     of     land. 

Such  as  are  suitable  for  the  protec- 
tion of  the  improvement. 
General  type  to  be  formulated  by  plan- 
ning   commission    and    approved    by 
council 
Detailed  compliance  with  these  general 
limitations  secured  by  requiring  build- 
ers to  submit  plan  in  advance  to  be 
approved  by  the  planning  commission 

4.  Financial  Provisions 

a.  No  special  regulation  relating  to  issuance 

of  bonds 

b.  Proceeds  from  sale  of  surplus  to  be  ap- 

plied to  cost  of  making  improvement 

c.  Any  profits  from  excess  condemnation  to 

be  appropriated  by  council  for  any 
project  of  public  improvement  sanc- 
tioned by   planning  commission 

These  suggestions  lay  no  claim  to  finality.  Most  of 
them  are  based  frankly  on  an  a  priori  conception  of  the 
way  in  which  they  would  probably  work  out.  They  are 
presented,  however,  after  careful  consideration   of   the 


274  EXCESS  CONDEMNATION 

numerous  enactments  in  which  the  power  of  excess  con- 
demnation has  been  embodied,  with  the  hope  that  they 
may  provoke  a  helpful  discussion  of  the  many  problems 
involved.  It  will  be  noted  that  under  the  act  proposed, 
the  power  of  condemning  land  in  excess  is  granted  in 
general  terms  and  subject  to  few  restrictions.  This  is 
not  due  to  any  failure  to  recognize  that  this  power,  like 
any  other,  is  subject  to  abuse.  It  is  due  rather  to  the 
belief  that  the  real  merits  of  excess  condemnation  as  a 
general  working  policy  in  American  cities  can  be  demon- 
strated only  by  a  fair  trial,  and  that  such  a  fair  trial 
may  be  had  only  when  the  municipal  authorities  exer- 
cising it  find  it  a  flexible  instrument  which  they  can  read- 
ily adapt  to  the  needs  and  exigencies  of  a  somewhat  er- 
ratic and  speculative  enterprise.  If  it  is  to  prove  satis- 
factory, the  best  results  will  be  attained  in  this  way.  If 
it  is  to  fail,  it  will  be  because  of  inherent  defects  or  in- 
adaptability to  American  municipal  conditions,  and  not 
to  strangulation  by  inadequate  grant  of  power. 


CHAPTER  VII 

THE   CONSTITUTIONALITY   OF    EXCESS    CONDEMNATION 

In  entering  upon  a  consideration  of  the  constitution- 
ality of  excess  condemnation,  one  approaches  a  problem 
peculiarly  American.^  The  proponents  of  this  policy  in 
the  cities  and  states  of  Europe  or  Canada  have  only  to 
convince  the  legislatures  of  the  expediency  of  adopting 
such  a  program.  In  the  United  States,  the  case  for 
excess  condemnation  must  be  argued  first  before  the 
legislatures  and  subsequently  before  the  courts.  In  fact, 
one  of  the  most  difficult  problems  which  the  friends  of 
this  system  have  faced,  in  this  country,  has  been  the 
problem  of  quieting  the  doubts  which  persistently  arise 
in  the  minds  of  legislators  and  judges  as  to  the  consti- 
tutionality of  excess  condemnation.  It  is  the  purpose  of 
this  chapter  to  examine  this  constitutional  question. 

It  may  as  well  be  recognized  at  the  outset  that  Amer- 
ican courts  cannot  be  expected  to  view  excess  condemna- 
tion with  any  friendly  predisposition.  It  is  a  policy 
which  involves  a  somewhat  liberal  expansion  of  the 
power  of  eminent  domain,  and  that  in  itself  is  perhaps 
sufficient  to  cause  it  to  be  an  object  of  judicial  suspicion. 
The  right  of  eminent  domain  is  "  one  of  the  highest  pow- 
ers of  sovereignty  pertaining  to  the  State  itself,  and  in- 

1  Professor  W.  F.  Dodd  states  that  the  power  of  excess  con- 
demnation has  been  held  unconstitutional  in  Switzerland.  (Ents- 
cheidungen  des  Schweiserischen  Bundesgerichts,  Vol.  31  (1Q05) 
Part  I,  p.  64s)  ;  and  Argentina  (Fallos  de  la  Siiprema  Corte,  Vol. 
33,  (1888)  p.  162).  Cited  in  article  on  "  Political  Safeguards  and 
judicial  Guaranties,"  Columbia  Law  Review,  Vpl  xv,  p.  306,  note, 

275 


276  EXCESS  CONDEMNATION 

terfering  most  seriously  and  often  vexatiously  with  the 
ordinary  rights  of  property,"  ^  and  it  is  only  natural 
that  grants  of  authority  to  use  it  are  strictly  construed 
by  the  courts  and  that  the  exercise  of  it  is  set  about  by 
numerous  restrictions  aiming  to  guard  the  rights  of  the 
individual  citizen  from  wanton  infringement.  It  is  in 
the  light  of  these  general  principles  limiting  the  right  of 
eminent  domain  that  the  problem  of  the  constitutionality 
of  excess  condemnation  must  be  viewed,  and  a  discus- 
sion of  those  principles  is  pertinent  at  this  point. 

The  law  of  eminent  domain  in  this  country,  as  every- 
where, contains  the  important  guarantee  that  all  private 
property  taken  in  the  exercise  of  that  power  shall  be 
paid  for.  The  clause  of  the  Fifth  Amendment  of  the 
Constitution  of  the  United  States,  "  nor  shall  private  prop- 
erty be  taken  for  public  use  without  just  compensation," 
applies  to  the  national  government.  The  states  are 
bound  by  similar  clauses  in  their  own  constitutions  as 
well  as  by  the  limitation  of  the  Fourteenth  Amendment 
which  has  been  held  to  forbid  the  taking  by  eminent 
domain  of  private  property  without  just  compensation, 
as  a  taking  of  property  without  due  process  of  law.^ 
There  is  no  suggestion,  however,  that  excess  condemna- 
tion would  in  any  way  override  this  fundamental  re- 
quirement. 

The  second  important  principle  in  the  American  law 
of  eminent  domain  is  one  which  has  grown  out  of  the 
doctrine  just  discussed,  through  judicial  construction. 
The  prohibition  against  the  taking  of  private  property 
for  public  use  without  just  compensation  has  been  ex- 

2  Currier  Marietta  and  Cincinnati  R.  R.  Co.,  ii  Ohio  St.,  228, 

331- 

3  Black  on  Constitutional  Law,  p.  471,  note  9,  citing  cases ;  also 
Lewis,  Eminent  Domain,  Sec.  10. 


THE  CONSTITUTIONALITY  277 

panded  by  the  courts  into  a  prohibition  against  taking 
private  property  for  private  use,  with  or  without  just 
compensation.*  In  other  words,  property  may  be  taken 
by  right  of  eminent  domain  only  for  a  public  use. 

It  is  also  a  well  established  principle  of  the  law  of 
eminent  domain  that  the  question  whether  a  particular 
use  for  which  private  property  is  sought  to  be  con- 
demned is  or  is  not  public,  is  a  question  which  can  be 
finally  settled  only  by  the  courts.  A  definition  of  the 
term  "  public  use  "  must  be  sought,  therefore,  not  in  stat- 
ute books  but  in  judicial  decisions.^ 

One  who  seeks  to  find  in  the  utterances  of  courts  a 
clear  statement  of  the  meaning  of  the  term  "  public 
use  "  is  doomed  to  disappointment.  He  finds  chaos  and 
conflict  rather  than  unanimity  or  even  similarity  of  opin- 
ion.    As  one  court  has  expressed  it : 

No  question  has  ever  been  submitted  to  the  courts  upon 
which  there  is  a  greater  variety  and  conflict  of  reasoning 
and  results  than  that  presented  as  to  the  meaning  of  the 
words  "  public  use,"  as  found  in  the  diff'erent  state  constitu- 
tions regulating  the  right  of  eminent  domain.* 

This  is  due  primarily  to  the  fact  that  what  is  or  is  not 
a  public  use  is  manifestly  not  a  question  of  absolute  fact 
but  a  matter  of  opinion  in  respect  to  which  persons  will 
naturally  and  quite  honestly  disagree.     It  is  probably  for 

*  Taking  property  for  private  use  has  long  been  held  by  the  state 
courts  to  be  a  violation  of  due  process  of  law.  Such  a  taking  was 
held  by  the  U.  S.  Supreme  Court  to  violate  the  due  process  clause 
of  the  Fourteenth  Amendment  in  the  case  of  Chicago,  Burlington 
and  Quincy  Railroad  Company  vs.  Chicago,  166  U.  S.,  226  (1896). 
For  a  clear  statement  of  the  development  of  this  doctrine  by  the 
courts  see  "  Taxation  for  a  Private  Purpose  "  by  Howard  L.  Mc- 
Bain,  Political  Science  Quarterly,  Vol.  xxix,  pp.  186-188  and  notes. 

''Lewie,  Eminent  Domain,  Sec.  251,  citing  cases. 

*  Dayton  Mining  Co.  vs.  Seawell,  1 1  Nev.  394,  400. 


278  EXCESS  CONDEMNATION 

this  reason  that  the  courts  have  consistently  refrained 
from  enunciating  any  general  definition  of  the  term. 
They  have  contented  themselves  with  deciding  each  con- 
crete question  as  to  whether  or  not  a  proposed  use  for 
which  private  property  was  sought  to  be  condemned  was 
"  public  "  within  the  meaning  of  the  constitutional  pro- 
vision. In  other  words,  "  public  use  "  like  "  due  process 
of  law  "  is  a  term  the  meaning  of  which,  to  the  extent  to 
which  it  is  established  at  all,  has  been  established  by  the 
gradual  process  of  judicial  inclusion  and  exclusion.  Its 
meaning  is  to  be  discovered  only  by  enumerating,  first, 
the  uses  which  in  concrete  cases  have  been  held  to  be 
public,  and  second,  those  uses  which  have  been  held  not 
to  be  public. 

This  refusal  on  the  part  of  the  courts  to  announce  a 
general  definition  of  the  term  "public  use"  has  allowed 
them  to  give  it  a  flexibility  and  capacity  for  expansion  of 
meaning  otherwise  impossible.  Changing  conditions  and 
new  demands  have  thus  been  met  by  a  broadening  of  the 
term  which  bids  fair  to  make  the  power  of  eminent  do- 
main an  effective  agent  for  many  of  the  newer  forms  of 
social  control.  It  is  not  necessary  for  the  purpose  of 
this  study  to  trace  in  detail  this  gradual  broadening  of  the 
meaning  of  the  term  "  public  use."  Some  notion,  how- 
ever, of  the  way  in  which  it  has  been  adapted  to  meet 
changing  conditions  may  be  gained  by  marking  the  atti- 
tude of  the  justice  of  the  United  States  Supreme  Court 
who  declared  in  1847  that  there  was  no  precedent  or 
argument  to  justify  the  taking  by  eminent  domain  of 
the  land  for  the  site  of  a  courthouse,  hospital  or  jail, 
**  since  no  necessity  seems  to  exist  which  is  sufficient  to 
justify  so  strong  a  measure  "  ^  and  comparing  that  atti- 

'  Woodbury,  J.,  in  West  River  Bridge  Co.  vs.  Dix,  6  Howard, 
pp.  507,  545- 


THE  CONSTITUTIONALITY  279 

tude  with  the  viewpoint  of  the  Massachusetts  court  which 
recently  upheld  the  condemnation  of  an  easement  limit- 
ing the  height  of  buildings  for  the  purpose  of  protecting 
the  beauty,  light  and  air  of  a  public  park,  asserting 
that : 

The  uses  which  should  be  deemed  public  in  reference  to 
the  right  of  the  legislature  to  compel  an  individual  to  part 
with  his  property  for  a  compensation,  and  to  authorize  or  di- 
rect taxation  to  pay  for  it,  are  being  enlarged  and  extended 
with  the  progress  of  the  people  in  education  and  refinement.^ 

The  long  line  of  cases  in  which  our  courts  have  been 
making  the  term  "  public  use  "  concrete  may  be  grouped 
roughly  into  two  classes.  In  the  first  of  these  classes 
may  be  placed  those  decisions  which  interpret  "  public 
use  "  to  mean  "  use  by  the  public."  According  to  this 
view,  the  public,  or  such  portion  of  it  as  may  be  in  a 
position  to  avail  itself  of  the  opportunity,  must  have  the 
right  actually  to  use  the  property  so  taken.  Under  such 
an  interpretation  the  more  common  applications  of  the 
power  of  eminent  domain  may  be  readily  justified. 
Highways,  parks,  playgrounds  and  pubHc  building  sites 
are  all  open  to  direct  use  by  the  entire  community.  This 
view  of  the  term  "  public  use  "  is  supported  by  a  con- 
siderable list  of  authorities  and  meets  the  approval  of 
one  of  the  most  distinguished  commentators  in  this  field 
of  law.®  It  has  four  advantages :  first,  it  places  upon  the 
term  in  question  a  very  natural  and  obvious  interpreta- 
tion ;  second,  it  is  historically  sound,  because  it  recognizes 
the  actual  uses  for  which  eminent  domain  was  employed 
when  the  term  "public  use"  was  first  introduced ;  third,  it 

'  8  Attorney-General  vs.  Williams,   174  Massachusetts  476,  478 
(1899). 
'  Lewis,  Eminent  Domain,  Sees.  257-258,  citing  cases. 
19 


28o  EXCESS  CONDEMNATION 

conforms  to  the  well-established  doctrine  that  the  right 
of  eminent  domain,  being  in  derogation  of  private  rights, 
must  be  strictly  construed ;  and  fourth,  "  it  is  the  only 
view  which  gives  the  words  any  force  as  a  limitation  or 
renders  them  capable  of  any  definite  and  practical  appli- 
cation." 1" 

These  arguments  supporting  the  view  which  makes 
the  term  "  public  use "  synonymous  with  "  use  by  the 
public,"  have  not  been  universally  appealing.  Another 
interpretation  prevails  in  many  jurisdictions,  which  con- 
strues "  public  use  "  to  mean  public  welfare  or  advantage. 
A  broader  application  of  the  term  would  seem  to  be  nec- 
essary if  the  courts  are  to  sustain  the  exercise  of  the 
right  of  eminent  domain  for  the  purpose  of  opening  an 
irrigation  ditch  over  a  man's  land  for  the  benefit  of  his 
neighbor,^^  or  for  the  operation  of  an  aerial  tramway  over 
another's  land  for  the  conveying  of  ore  from  a  mine  to 
a  place  of  shipment.^^  In  neither  one  of  these  cases  was 
the  land  or  property  right  which  was  condemned  actually 
used  by  the  public,  nor  could  it  have  been  so  used.  The 
irrigation  of  a  whole  district  or  the  adequate  develop- 
ment of  its  natural  resources  may  depend,  however,  upon 
the  power  to  make  such  uses  of  the  right  of  eminent 
domain,  and  if  private  property  may  be  taken  for  any 
purpose  which  contributes  to  the  general  benefit  or  ad- 
vantage of  the  community,  there  could  be  no  question  as 
to  the  legitimacy  of  such  proceedings  as  these.  This 
liberal  view  of  the  meaning  of  the  term  "  public  use  "  is 
well  expressed  in  the  words  of  the  Supreme  Court  of 
Idaho : 

1"  Lewis,  Eminent  Domain,  Sec.  258,  p.  507. 

11  Clark  vs.   Nash,  27  Utah,   158    (1903). 

12  Highland  Boy  Gold  Mining  Co.  vs.  Strickley,  28  Utah,  215 
(1904).  Affirmed  by  United  States  Supreme  Court  in  200  U.  S., 
527- 


THE  CONSTITUTIONALITY  281 

It  is  enough  if  the  taking  tends  to  enlarge  the  resources, 
increase  the  industrial  energies  and  promote  the  productive 
power  of  any  considerable  part  of  the  inhabitants  of  a 
section  of  the  state,  or  leads  to  the  growth  of  towns  and 
the  creation  of  new  channels  for  the  employment  of  private 
capital  and  labor,  as  such  results  indirectly  contribute  to  the 
general  prosperity  of  the  whole  community.^^ 

This  doctrine  has  of  necessity  been  given  recognition 
in  those  states  in  w^hich  the  adequate  development  of 
natural  resources  has  demanded  the  exercise  of  the  right 
of  eminent  domain  in  cases  where  the  narrower  theory 
of  "  use  by  the  public  "  could  not  apply.^*  It  is  not  a 
doctrine  which  has  found  general  acceptance  elsewhere 
and  does  not,  in  all  probability,  represent  the  weight  of 
authority  on  the  question  of  public  use. 

In  the  light  of  these  general  principles  of  the  law  of 
eminent  domain  the  constitutionality  of  excess  condem- 
nation must  be  settled.  Is  the  purpose  for  which  the 
public  authorities  take  the  surplus  land  a  use  which  the 
courts  will  regard  as  public?  By  that  test  the  policy 
must  stand  or  fall.  Before  attempting  to  discuss  any 
general  considerations  or  to  present  conclusions  upon 
that  point,  it  will  be  worth  while  to  touch  briefly  upon  the 
various  cases  in  which  the  validity  of  excess  condemna- 
tion statutes  has  actually  been  passed  upon  by  the  courts, 
either  collaterally  or  directly. 

The  first  utterance  by  an  American  court  upon  the  con- 
stitutionality of  excess  condemnation  appears  to  have 
been  that  of  the  Supreme  Court  of  South  Carolina,  in  the 

13  Potlatch  Lumber  Co.  vs.  Peterson,  12  Idaho,  769.  In  none  of 
these  cases  is  there  actually  "  use  by  the  public  "  of  the  thing  con- 
demned ;  there  is  merely  the  exercise  of  the  right  of  eminent  domain 
for  the  purpose  of  allowing  an  individual  or  a  group  of  individuals 
to  carry  on  an  enterprise  which  is  of  general  community  benefit. 

**See  Lewis,  Eminent  Domain,  Sec  257  and  cases  cited. 


282  EXCESS  CONDEMNATION 

case  of  Dunn  vs.  the  City  Council  of  Charleston,  decided 
in  1824.^^  A  state  statute  passed  in  1817  had  conferred 
on  the  City  Council  of  Charleston  what  they,  at  least, 
supposed  to  be  the  power  to  condemn  remnants  of  land. 
It  provided  that  the  City  Council  might,  in  connection 
with  widening  a  street,  purchase  the  "  lots  fronting  on 
such  street,"  if  the  owner  consented;  and  if  he  did  not 
consent  or  if  he  demanded  an  unreasonable  price,  the 
council  was  authorized  to  take  such  lots  anyway  at  a 
price  fixed  by  a  board  of  arbitrators/®  Acting  under 
authority  of  this  statute,  the  City  Council  of  Charleston 
took  the  whole  of  a  plot  of  land  owned  by  Dunn,  a  part 
of  which  they  needed  for  a  street,  and  sold  the  remainder 
"  consisting  of  a  large  and  valuable  lot "  for  double  the 
amount  which  they  had  offered  to  pay  him  for  it.     Dunn 

15  Harper's  Law  Report,  189. 

i«7  Stat,  136. 

Clause  I.  "  Whenever  the  City  Council  of  Charleston  shall 
think  it  expedient  to  widen  any  street,  lane  or  alley,  they  shall 
first  submit  the  plan  of  the  intended  improvement  to  a  board  of 
nine  commissioners  to  be  named  and  appointed  from  time  to  time 
by  the  legislature,  and  if  approved  and  sanctioned  by  the  said 
board,  then  the  said  City  Council  shall  have  full  power  to  pur- 
chase the  lots  fronting  on  such  street,  alley,  or  lane,  and  the  fee 
simple  of  such  lot  or  lots  shall  be  vested  in  the  City  Council  from 
the  day  of  the  deed  of  sale." 

Clause  2.  "  In  case  the  owner  or  owners  of  such  lot  or  lots, 
fronting  on  such  street,  alley,  or  lane,  shall  refuse  to  sell  his  or 
her  lot  or  lots,  or  shall  demand  for  the  same  what  may  be 
deemed  an  unreasonable  price  by  the  City  Council,  then  the  City 
Council  shall  nominate  and  appoint  not  less  thah  three  freehold- 
ers, resident  in  the  city,  who  shall  meet  an  equal  number  to  be  named 
and  appointed  on  the  part  of  the  owner  or  owners,  to  determine  and 
fix  on  the  real  and  true  value  of  such  lot  or  lots,  with  full  power  in 
the  commissioners,  appointed  as  aforesaid,  in  case  of  disagree- 
ment, to  call  in  one  other  commissioner,  and  on  the  City  Council 
paying  the  full  value  of  said  lot  or  lots,  fixed  and  determined  on  in 
the  manner  above  designated,  the  fee  simple  of  the  said  lot  or 
lots  shall  be  vested  jrj  them." 


THE  CONSTITUTIONALITY  283 

appealed  to  the  court  for  a  prohibition  to  restrain  this 
alleged  infringement  of  his  rights. 

In  the  view  of  the  Supreme  Court  of  the  state  this  case 
presented  two  questions :  first,  "  whether  the  act  of  1817 
authorizes  the  City  Council  to  take  any  more  of  the  land 
belonging  to  the  plaintiff  than  was  necessary  for  the 
purpose  of  widening  the  street  " ;  and  second,  "  if  it  does, 
whether  the  Legislature,  in  delegating  such  authority, 
have  exceeded  their  constitutional  powers." 

In  considering  the  purport  of  the  statute  in  question 
the  court  admitted  that  "if  we  confine  ourselves  to  the 
letter  of  the  law,  it  certainly  will  admit  of  the  construc- 
tion contended  for  on  the  part  of  the  City  Council  .  .  . 
It  is  taking  a  superficial  view  of  an  act,  to  adhere  to  its 
letter.  We  must  look  to  the  spirit  and  design  of  the 
law."  The  court  then  launched  into  a  disquisition  on  the 
possible  meaning  of  the  word  "  lot "  the  substance  of 
which  was,  that  "  the  word  lot  is  of  ambiguous  import, 
and  although,  when  speaking  in  relation  to  town  lots, 
we  usually  have  reference  to  some  particular  portion  or 
section  of  the  town,  yet  we  have  no  definite  idea  of  any 
given  quantity  of  land."  From  this  point,  by  a  process 
of  reasoning  not  easy  to  follow,  the  learned  judge  soon 
found  himself  at  the  conclusion  he  had  apparently  made 
up  his  mind  to  reach ;  that  "  the  construction  which  best 
meets  the  views  of  the  Legislature,  and  which  best  com- 
ports with  the  true  spirit  and  design  of  the  law,  is  to  give 
to  the  City  Council  the  power  to  take  as  much  land,  or 
such  parts  of  the  lots,  as  is  necessary  for  the  street,  and 
no  more." 

Turning  to  the  second  question,  the  validity  of  the 
statute  if  construed  as  granting  the  power  to  condemn 
the  land  remnants,  the  court  declared  that  the  point  really 
raised  was,  "  whether  the  Legislature  has  the  constitu- 


284  EXCESS  CONDEMNATION 

tional  right  of  taking  the  property  of  one  individual,  and 
transferring  it  to  another,  or  to  a  body  corporate,  for 
their  own  individual  benefit  and  emolument."  The  an- 
swer to  this  question  was  admittedly  dictum  and  was 
advanced  because  the  question  itself  was  one  which  was 
easy  to  answer.  The  state  constitution  contained  the 
provision  that  "  no  freeman  shall  be  disseized  of  his  free- 
hold, liberties  or  privileges,  or  outlawed,  or  exiled,  or  in 
any  manner  destroyed  or  deprived  of  his  life,  liberty  or 
property,  but  by  the  judgment  of  his  peers,  or  by  the 
law  of  the  land."  All  commentators  were  agreed  that 
the  expression  "  the  law  of  the  land  "  was  intended  to 
act  as  a  check  on  the  exercise  of  arbitrary  power.  The 
constitution  itself  was  based  upon  certain  well-estab- 
lished principles  of  common  law  and  common  justice. 

Any  act  of  partial  legislation,  which  operates  oppressively 
upon  one  individual,  in  which  the  community  has  no  interest, 
is  not  the  law  of  the  land.  ...  To  take  the  property  of  one 
man,  and  give  it  to  another,  would  be  contrary  to  all  those 
immutable  principles  of  justice  and  common  law,  which  have 
been  consecrated  by  universal  consent  from  time  imme- 
morial, and  which  are  secured  to  us  by  the  plain  and  un- 
equivocal language  of  the. Constitution.  Such  would  be  the 
effect  of  the  act  in  question. 

In  this  case,  in  short,  because  convinced  that  a  stat- 
ute conferring  power  to  condemn  property  in  excess  of 
actual  needs  would  be  a  taking  of  that  property  contrary 
to  the  law  of  the  land,  or,  to  use  the  modern  term,  in 
violation  of  due  process  of  law,  the  court  skilfully  con- 
strued the  statute  in  such  a  way  as  to  avoid  the  neces- 
sity of  declaring  it  unconstitutional. 

The  validity  of  an  act  authorizing  the  condemnation 
of  remnants  of  land  came  before  the  highest  court  of 


THE  CONSTITUTIONALITY  285 

the  state  of  New  York  for  decision  in  the  year  1834. 
This  was  in  the  case  of  "  The  Matter  of  Albany 
Street."  "  A  New  York  statute  of  1812  provided  that 
in  all  cases  where  only  a  part  of  a  lot  or  parcel  of  land 
should  be  required  for  a  public  improvement  the  public 
authorities  of  the  city  of  New  York  might,  if  they 
thought  it  expedient,  take  the  entire  lot.  The  part  not 
needed  for  the  particular  improvement  might  then  be 
devoted  to  some  other  public  use  or  sold.^®  The  com- 
missioners of  estimate  and  assessment  entered  upon  the 
project  of  extending  Albany  Street,  an  improvement 
which  made  it  necessary  to  appropriate  for  street  pur- 
poses a  strip  of  land  running  through  the 'center  of  Trin- 
ity Churchyard.  Acting  under  authority  of  the  statute 
in  question,  the  commissioners  proceeded  to  condemn 
not  only  the  land  necessary  for  the  street,  but  also  a 
part  of  the  churchyard  lying  outside  the  lines  of  the 
proposed  highway.  The  Trinity  Corporation  promptly 
contested  their  right  to  take  this  surplus  land,  and  the 
validity  of  the  act  of  1812  was  placed  squarely  before 
the  court. 

The  court  disposed  of  that  question  in  a  paragraph 
that  is  brief  enough  to  make  possible  its  quotation  in 
full  and  is  striking  enough  to  make  such  quotation  worth 
while. 

The  constitution,  by  authorizing  the  appropriation  of  pri- 
vate property  to  public  use,  impliedly  declares,  that  for  any 
other  use,  private  property  shall  not  be  taken  from  one  and 
applied  to  the  use  of  another.  It  is  in  violation  of  natural 
right,  and  if  it  is  not  in  violation  of  the  letter  of  the  consti- 
tution, it  is  of  its  spirit,  and  cannot  be  supported.  This 
power  has  been  supposed  to  be  convenient,  when  the  greater 
part  of  a  lot  is  taken,  and  only  a  small  part  is  left,  not  re- 

"  II  Wendell,  149.  is  Laws  of  1812,  Ch.  174. 


286  EXCESS  CONDEMNATION 

quired  for  public  use,  and  that  small  part  of  but  little  value 
in  the  hands  of  the  owner.  In  such  case  the  corporation  has 
been  supposed  best  qualified  to  take  and  dispose  of  such 
parcels  or  gores  as  they  have  sometimes  been  called;  and 
probably  this  assumption  of  power  has  been  acquiesced  in  by 
the  proprietors.  I  know  of  no  case  where  the  power  has 
been  questioned,  and  where  it  has  received  the  deliberate 
sanction  of  this  court.  Suppose  a  case  where  only  a  few 
feet  or  even  inches  are  wanted  from  one  end  of  a  lot  to 
widen  a  street,  and  a  valuable  building  stands  upon  the  other 
end  of  such  lot,  would  the  power  be  conceded  to  exist  to  take 
the  whole  lot,  whether  the  owner  consented  or  not?  Or 
suppose  the  commissioners  had  deemed  it  expedient  and 
proper,  in  this  case,  in  the  language  of  the  statute  to  take  the 
whole  of  the  churchyard,  the  act  would  have  been  equally 
within  the  letter  of  the  statute,  with  their  act  in  the  present 
case,  and  yet  no  one  would  suppose  that  the  legislature  ever 
intended  to  confer  such  a  power.  The  quantity  of  the 
residue  of  any  lot  cannot  vary  the  principle.  The  owner 
may  be  very  unwilling  to  part  with  only  a  few  feet;  and  I 
hold  it  equally  incompetent  for  the  legislature  thus  to  dispose 
of  private  property,  whether  feet  or  acres  are  the  subject 
of  this  assumed  power.  I  am  clearly  of  opinion  that  the 
commissioners  have  no  right  to  take  the  strip  of  land  in 
question  against  the  consent  of  the  corporation  of  Trinity 
Church. 

It  is  interesting  to  note  that  the  court  faces  squarely 
the  question  whether  the  taking  of  remnants  of  land 
can  be  justified  as  incidental  to  the  condemnation  of  the 
land  actually  necessary — the  view  later  taken  by  the 
Supreme  Court  of  Massachusetts — ^but  repudiates  that 
theory  on  the  ground  that  the  "  quantity  of  the  residue  of 
any  lot  cannot  vary  the  principle."  Under  the  decision 
in  the  Albany  Street  case,  nothing  savoring  of  excess 
condemnation  could  be  sustained;  and  that  case  was  fol- 


THE  CONSTITUTIONALITY  287 

lowed  in  the  subsequent  decisions  of  the  New  York 
courts"  and  cited  with  approval  in  many  other  jurisdic- 
tions in  dealing  with  related  problems. 

The  doctrines  of  law  which  were  laid  down  in  the  two 
cases  just  discussed  would  probably  meet  with  general 
acceptance  in  most  American  state  courts.  They  do  not, 
however,  meet  with  unqualified  acceptance  in  the  Su- 
preme Court  of  Massachusetts.  The  so-called  Rem- 
nants Act  which  was  passed  in  1904,  in  Massachusetts, 
has  already  been  discussed  at  some  length.-"  It  permit- 
ted the  public  authorities  to  condemn  the  whole  of  a  plot 
of  land,  part  of  which  was  needed  for  the  purposes  of  a 
public  improvement,  when  the  part  not  thus  needed  would 
be  "  unsuited  for  the  erection  of  suitable  and  appro- 
priate buildings."  For  several  years  after  this  act  was 
passed  no  city  availed  itself  of  the  power  conferred  and 
consequently  the  question  of  its  constitutionality  was 
never  presented  to  the  courts  in  a  direct  action.  In  1910, 
however,  the  Supreme  Court  of  the  state  met  this  ques- 
tion collaterally  and  gave  its  opinion  that  the  law  was 
valid.  In  that  year  the  legislature  of  Massachusetts, 
according  to  a  practice  prevailing  in  that  state,  asked 
the  Supreme  Court  for  an  advance  opinion  upon  the  con- 
stitutionality of  a  statute  conferring  broad  powers  of  ex- 
cess condemnation.^^     The  way  in  which  this  question 

1"  Embury  vs.  Conner,  3  N,  Y.,  511  (1850)  decided  that  the  act 
of  1812,  which  was  under  review  in,  The  Matter  of  Albany  Street, 
H  Wendell,  149,  was  constitutional  if  interpreted  so  as  to  give 
the  commissioners  of  estimate  and  assessment  authority  to  take 
the  whole  of  a  lot  part  of  which  was  needed  for  public  purposes 
upon  the  consent  of  the  owner  of  such  residue.  The  doctrine  of 
the  Albany  Street  Case  was  reaffirmed.  The  leading  case  is  also 
followed  in  Bennett  vs.  Boyle,  40  Barber  (N.  Y.  Sup.  Ct.)  551 
(1863). 

20  Supra,  p.  62ff. ;  Ch.  443,  acts  of  1904. 

21  Supra,  p.  105  ff. 


288  EXCESS  CONDEMNATION 

was  answered  will  be  considered  at  a  later  point,^^  but  in 
the  course  of  the  opinion  submitted  the  court  had  occa- 
sion to  refer  to  the  Remnants  Act  of  1904  for  purposes 
of  analogy  and  intimated  that  it  regarded  it  as  consti- 
tutional. The  legislature .  apparently  interpreted  this  as 
a  constructive  suggestion  and  thereupon  asked  the  court 
if  the  excess  condemnation  law  they  were  seeking  to 
frame  would  be  constitutional  if  it  contained  provisions 
similar  to  those  found  in  the  act  of  1904. 

In  answer  to  this  question  the  court  replied  as  fol- 
lows: 

We  are  asked  whether  it  would  make  any  difference  if  the 
proposed  statute  contained  provisions  like  those  of  the  statute 
of  1904,  chapter  443,  section  6.  In  our  opinion,  given  to  the 
House  of  Representatives,  we  intimated  that  this  statute  is 
constitutional.  In  our  judgment  it  goes  to  the  very  verge  of 
constitutionality.  The  grounds  on  which  we  are  inclined  to 
sustain  it  have  little  relevancy  to  the  stated  purpose  of  the 
unusual  provisions  of  the  proposed  statute.  They  are:  first, 
that  there  can  be  no  taking  outside  the  location  of  the  public 
work,  except  of  a  remnant  of  an  estate  a  part  of  which  is 
actually  required  for  the  laying  out,  alteration,  or  location  of 
the  public  work,  and  then  only  if  the  remnant  left  after 
taking  such  part  would,  from  its  size  or  shape,  be  "  unsuited 
for  the  erection  of  suitable  and  appropriate  buildings  " —  in 
other  words,  only  when  there  is  a  remnant  that  is  too  small 
or  too  ill  shaped  to  be  of  any  practical  value  for  the  use  to 
which  valuable  land  is  commonly  put;  and,  secondly,  that 
such  a  remnant  can  be  taken  only  upon  an  adjudication  that 
public  convenience  and  necessity  require  the  taking.  Unless 
it  can  be  said  that  public  convenience  and  necessity  never 
can  require  the  taking  of  such  a  remnant  the  statute  cannot 
be  declared  unconstitutional.  While  it  is  plain  that  a  city  or 
town  cannot  take  land  outside  a  public  work  for  speculative 

22  Infra,  p.  29oflf. 


THE  CONSTITUTIONALITY  289 

purposes,  we  can  conceive  of  a  remnant  of  an  estate,  a  part 
of  which  is  necessarily  taken,  which  remnant  is  so  small,  or 
of  such  shape  and  of  so  little  value,  that  the  taking  of  it  in 
the  interest  of  economy  or  utility,  or  in  some  other  public 
interest,  may  be  fairly  incidental  and  reasonably  necessary 
in  connection  with  the  taking  of  land  for  the  public  work. 
But  this  principle  is  not  applicable  to  a  taking  for  the  larger 
purposes  stated  in  the  questions  before  us.-^ 

It  is  interesting  to  note  that  there  is  a  direct  conflict 
between  the  view  here  expressed  and  the  doctrine  enun- 
ciated by  the  New  York  court  in  the  Albany  Street  case. 
In  the  earlier  case  the  judge  had  repudiated  the  theory 
that  the  amount  of  land  which  was  taken  by  eminent 
domain  in  excess  of  actual  needs  could  in  any  way  afifect 
the  principle  controlling  the  legitimacy  of  that  taking. 
The  Massachusetts  court,  on  the  other  hand,  distinctly 
states  that  while  an  excess  taking  on  a  large  scale  is  in- 
defensible under  the  constitution  of  that  state  there  might 
be  plots  of  land  of  such  small  size  and  low  value  that 
their  condemnation  in  excess  of  actual  needs  would  be 
regarded  as  "  incidental  and  reasonably  necessary "  to 
the  major  project  in  hand.  No  other  jurisdiction  has,  as 
yet,  followed  this  view  of  the  Supreme  Court  of  Massa- 
chusetts. 

The  cases  thus  far  discussed  have  all  dealt  with  the 
validity  of  statutes  authorizing  the  condemnation  of 
remnants  of  land.  That  was  the  only  type  of  excess 
condemnation  which  was  tried  out  in  the  American  states 
until  recent  years.  In  one  or  two  other  cases,  however, 
the  constitutionality  of  a  liberal  and  thoroughgoing  grant 
of  the  power  of  excess  condemnation  has  lately  come 
before  the  courts. 

23  Opinions  of  Justices,  204  Massachusetts  616,  61^20  (1910). 


290  EXCESS  CONDEMNATION 

The  first  judicial  utterance  upon  this  broader  ques- 
tion was  that  of  the  Massachusetts  Supreme  Court  in 
the  opinion  just  mentioned.  The  general  character  of 
the  project  which  the  legislature  was  promoting  has  al- 
ready been  indicated.^*  After  reciting  the  need  for  a 
commercial  thoroughfare  in  the  city  of  Boston  and  the 
inability  of  the  public  authorities  to  create  such  an  im- 
provement through  existing  means,  the  legislature  pro- 
pounded the  following  question  to  the  court : 

Is  it  within  the  constitutional  power  of  the  Legislature  to 
authorize  the  city  of  Boston,  or  such  other  public  authority 
as  the  Legislature  may  select,  to  lay  out  such  a  thoroughfare 
and  rear  streets,  and  to  take  not  only  the  land  or  easements 
necessary  for  the  same,  but  also  such  quantities  of  land  on 
either  side  of  said  thoroughfare  or  between  the  same  and 
said  rear  streets,  as  may  be  reasonably  necessary  for  the  pur- 
poses hereinbefore  set  out,  with  a  view  to  the  subsequent  use 
by  private  individuals  of  so  much  of  that  property  taken  as 
lies  on  either  side  of  said  thoroughfare,  under  conveyances, 
leases,  or  agreements  which  shall  embody  suitable  provisions 
for  the  construction  on  said  land  of  buildings  suited  to  the 
objects  and  purposes  hereinbefore  set  out,  and  for  the  use, 
management  and  control  of  said  lands  and  buildings  in  such 
manner  as  to  secure  and  best  promote  the  public  interests 
and  purposes  hereinbefore  referred  to;  assuming  that  the  act 
provides  just  compensation  for  all  persons  sustaining  dam- 
age by  the  said  takings  ?  ^ 

The  court  answered  this  question  in  the  negative.  The 
project  contemplated  involved  an  exercise  of  the  right 
of  eminent  domain  and  a  use  of  the  taxing  power  to  carry 
out  the  necessary  improvements.  The  question  was 
directly  raised  whether  the  land  outside  the  thoroughfare 

24  Supra,  p.  losff. 

^i^  Opinions  of  Justices,  204  Mass.  604,  608-609  (iQio). 


THE  CONSTITUTIONALITY  291 

would  be  taken  for  a  public  use.  "  It  is  plain  that  a 
use  of  the  property  to  obtain  the  possible  income  or 
profit  that  might  accrue  to  the  city  from  the  ownership 
and  control  of  it  would  not  be  a  public  use.  ...  It  is 
equally  true  and  indubitable  that  a  management  and  use 
of  such  property  to  promote  the  interests  of  merchants 
or  traders  who  might  occupy  it,  and  to  furnish  better 
facilities  for  doing  business  and  making  profits,  would 
not  be  a  public  but  a  private  use  of  the  real  estate."  In 
support  of  this  view  the  court  cited  a  long  series  of  cases 
decided  in  the  state  and  federal  courts  holding  that  gov- 
ernment aid  afforded  to  private  business  enterprises  was 
unconstitutional  as  involving  the  exercise  of  the  taxing 
power  for  a  private  purpose.  It  quoted  with  special  ap- 
proval an  excerpt  from  one  of  its  earlier  opinions  declar- 
ing: 

The  promotion  of  the  interests  of  individuals,  either  in 
respect  of  property  or  business,  although  it  may  result  inci- 
dentally in  the  advancement  of  the  public  welfare,  is  in  its 
essential  character,  a  private  and  not  a  public  object.  How- 
ever certain  and  great  the  resulting  good  to  the  general 
public,  it  does  not,  by  reason  of  its  comparative  importance, 
cease  to  be  incidental.^® 

After  commenting  upon  a  number  of  analogous  cases, 
the  court  finally  crystallized  its  opinion  with  this  state- 
ment : 

An  affirmative  answer  to  this  question  would  make  it  pos- 
sible for  the  city  to  take  the  home  of  a  resident  near  the  line 
of  the  thoroughfare,  or  the  shop  of  a  humble  tradesman,  and 

28 Lowell  vs.  Boston,  iii  Massachusetts  454,  461,  This  held 
unconstitutional  a  statute  which  permitted  the  city  of  Boston,  after 
the  great  fire  of  1872,  to  borrow  money  on  lands  and  lend  it  on 
mortgages  to  the  owners  of  land  whose  buildings  bad  been  burned. 


292  EXCESS  CONDEMNATION 

compel  him  to  give  up  his  property  and  go  elsewhere,  for  no 
other  reason  than  that,  in  the  opinion  of  the  authorities  of 
the  city,  some  other  use  of  the  land  would  be  more  profitable, 
and  therefore  would  better  promote  the  prosperity  of  the 
citizens  generally.  We  know  of  no  case  in  which  the 
exercise  of  the  right  of  eminent  domain  or  the  expenditure 
of  public  money  has  been  justified  on  such  grounds.^'^ 

About  a  month  after  receiving  this  opinion  from  the 
Supreme  Court  the  legislature  of  Massachusetts,  unwill- 
ing to  see  frustrated  its  effort  to  frame  an  excess 
condemnation  statute  which  would  be  constitutional, 
changed  the  form  of  the  question  first  submitted  and 
asked  for  another  opinion.  The  first  change  in  the  ques- 
tion was  to  inquire  if  excess  condemnation  could  be  used 
in  constructing  the  proposed  thoroughfare  provided  such 
excess  taking  were  necessary  in  order  to  secure  a  high- 
way 

adapted  especially  to  the  requirements  of  those  forms  of 
business  which  to  a  large  extent  employ  teaming,  thereby 
relieving  congestion  of  teaming  traffic  on  streets  in  the 
vicinity  or  at  least  helping  to  prevent  an  increase  thereof 
and  so  facilitating  the  transportation  of  freight  and  passen- 
gers through  the  section  of  the  city  in  which  the  way  is 
located.^^ 

There  is  evident  here  an  effort  to  supply  the  public  use 
to  justify  the  taking  of  the  excess  land  which  the  court, 
in  its  previous  opinion,  had  declared  was  lacking.  That 
effort  did  not,  however,  succeed.  The  court  dismissed 
the  point  with  the  statement :  "That  teaming  may  be  neces- 
sary in  carrying  on  these  different  kinds  of  business  seems 
to  us  to  have  little  bearing  on  the  question  whether  land 

"  Op.  cit..  p.  614. 

28  Opinions  of  Justices,  204  Massachusetts,  616. 


THE  CONSTITUTIONALITY  293 

along  the  sides  of  a  street  should  be  taken  by  the  city  or 
left  to  the  owners." 

The  legislature  modified  its  question  to  the  court  in 
the  second  place  by  adding  the  inquiry  whether  the  addi- 
tion to  the  statute  already  proposed  of  provisions  similar 
to  certain  of  those  in  the  Remnants  Act  of  1904  would 
save  the  statute.  The  provisions  in  question  stipulated 
that  a  commission  should  be  appointed  by  the  court  on 
the  petition  of  the  owner  of  remnants  sought  to  be  taken 
to  determine  whether  or  not  such  remnants  were  actually 
unsuited  for  the  erection  of  suitable  buildings,  and 
whether  the  public  necessity  and  convenience  justified 
their  taking.  It  was  in  answer  to  this  point  that  the 
court  launched  into  the  discussion  of  the  validity  of  the 
act  of  1904  which  has  already  been  summarized,^^  and 
pointed  out  the  distinctions  between  that  act  and  the 
one  under  consideration.  The  second  question  was 
accordingly  answered  in  the  negative.  The  result 
was  the  Massachusetts  Constitutional  Amendment  of 
191 1. ^'^ 

The  Supreme  Court  of  Massachusetts  has  expressed 
further  views  as  to  the  limitations  placed  on  the 
right  of  eminent  domain  in  two  somewhat  analogous 
cases. 

A  statute  of  1912^^  authorized  a  specially  created  park 
commission  to  condemn  any  or  all  of  certain  lands  along 
the  seashore  and  to  sell  or  lease  such  lands  as  might  not 
be  needed,  as  a  public  reservation  with  or  without  re- 
strictions as  to  their  future  use.  This  well-nigh  unre- 
stricted power  of  condemnation  and  resale  was  declared 
invalid  by  the  Supreme  Court  of  the  state  on  the  grounds 
of  lack  of  public  purpose.     The  statute  did  not  itself 

29  5"u/>ro,  p.  288.  3iCh.  715. 

30  Art.  X,  Part  i. 


294  EXCESS  CONDEMNATION 

suggest  any  purpose,  public  or  otherwise,  on  the  ground 
of  which  the  takings  could  be  justified.^^ 

In  1912,  the  legislature  asked  the  Supreme  Court  for 
an  opinion  on  the  constitutionality  of  a  bill,  then  pend- 
ing, which  authorized  the  Homestead  Commission  to 
purchase  land  for  the  purpose  of  developing  it,  and  build- 
ing thereon  workmen's  dwellings  which  it  might  sell  or 
rent  to  persons  of  the  laboring  class.  The  answer  of 
the  court  is  summed  up  in  this  excerpt  from  their  opin- 
ion: 

Although  eminent  domain  differs  from  taxation  in  the  occa- 
sion and  manner  of  its  exercise,  it  rests  for  its  justification 
upon  the  same  basic  principles  of  public  necessity.  If  this 
be  held  to  be  a  public  purpose,  it  would  be  lawful  to 
authorize  the  commission  to  exercise  the  power  of  eminent 
domain.  This  would  mean  that  the  home  of  one  wage- 
earner  might  be  taken  by  the  power  of  the  commonwealth  for 
the  purpose  of  handing  it  over  to  another  wage-earner. 
Neither  the  power  of  taxation  nor  of  eminent  domain  goes  to 
this  extent.^^ 

As  a  result  of  this  opinion  a  constitutional  amendment 
was  proposed  and  ratified  in  191 5  authorizing  the  Home- 
stead Commission  to  condemn  land  for  .  the  purposes 
of  relieving  congestion  of  population  and  providing  homes 
for  citizens.^* 

The  question  of  the  constitutionality  of  a  general  grant 
of  excess  condemnation  next  arose  in  the  state  of  Mary- 
land, but  the  pronouncement  of  the  Supreme  Court  of 
the  state  upon  that  question  was  not  particularly  clear. 
The  legislature  of  Maryland  had  passed,  in  1908,  an  ex- 

82  Salisbury  Land  and  Improvement  Co.  vs.  Commonwealth,  215 
Massachusetts,  371  (1913). 

83  Opinions  of  Justices,  211  Massachusetts,  624  (1912). 
8*  For  text  of  amendment  see  Laws  1914,  p.  1056. 


THE  CONSTITUTIONALITY  295 

cess  condemnation  act  applicable  to  the  city  of  Balti- 
more.^'* This  statute  had  authorized  the  public  author- 
ities of  that  city  to  condemn  any  land  adjacent  to  certain 
specified  kinds  of  public  improvements  the  use  of  which 
it  might  be  deemed  beneficial  to  subject  to  lawful  con- 
trol, and  to  resell  such  lands,  subject  to  restrictions  which 
would  make  that  control  effective. 

In  1910,  a  statute  was  passed  authorizing  the  city  of 
Baltimore  to  open  a  new  highway.  The  project  was 
known  as  the  Jones  Falls  improvement.  The  act  con- 
ferred upon  the  mayor  and  council  of  the  city  the  power 
to  "  open,  construct  and  establish  a  public  highway  in 
the  city  of  Baltimore  (specifying  its  exact  location  and 
direction)  .  .  .  and  to  acquire  for  said  purposes  landed 
or  other  property  in  the  bed  of  said  highway  and  adjacent 
thereto  on  either  or  both  sides  thereof,"  stipulating  that 
there  should  be  duly  designated  upon  a  plan  the  "  prop- 
erty, landed  or  other,  that  is  to  be  acquired  in,  along  or 
adjacent  to  said  highway "  and  further  authorized  the 
mayor  and  council  to  delegate  to  the  "  Commission  on 
City  Planning  "  the  power  to  construct  the  highway, 

to  condemn  and  acquire  by  purchase  or  condemnation  the 
lands  and  property  mentioned  in  the  last  preceding  section 
of  this  act,  and  such  other  powers  possessed  by  said  Mayor 
and  City  Council  of  Baltimore,  relating  to  the  laying  out, 
opening  and  constructing  of  highways,  and  acquiring  prop- 
erty, landed  or  other,  adjacent  thereto,  as  it  may  deem 
proper,  including  the  powers  vested  in  it  by  chapter  166  of 
the  acts  of  the  General  Assembly  of  Maryland,  passed  at  its 
session  of  the  year  1908 

(the  excess  condemnation  statute  referred  to).  The  act 
also  provided  that 

^''Laws  of  Maryland  1908,  Ch.  166. 
20 


296  EXCESS  CONDEMNATION 

any  landed  or  other  property  acquired  under  the  provisions 
of  this  act,  excepting  land  lying  in  the  bed  of  said  highway, 
may,  after  said  highway  has  been  laid  out,  be  sold  by  the 
Mayor  and  City  Council  of  Baltimore  or  said  Commission, 
if  power  to  make  such  sales  be,  as  it  may  be,  delegated  by 
ordinance  to  said  Commission,  for  such  prices,  at  such  times 
and  on  such  terms  as  may  by  ordinance  be  provided.^^ 

The  final  sections  of  the  statute  authorized  the  issuance 
of  bonds,  under  stated  conditions,  to  pay  for  the  improve- 
ment. 

In  June,  1910,  the  mayor  and  council  of  Baltimore 
passed  an  ordinance  providing  for  the  issuance  of  bonds 
necessary  to  carry  through  the  Jones  Falls  improvement. 
A  year  later  the  validity  of  the  act  of  19 10,  and  the 
ordinance  passed  under  it,  was  attacked  before  the  Su- 
preme Court  of  the  state  in  an  action  to  secure  an  in- 
junction restraining  the  city  from  proceeding  with  the 
sale  of  the  bonds.^^ 

In  this  case  the  court,  after  disposing  of  the  prelim- 
inary contention  that  the  act  in  question  embraced  more 
than  one  subject,  proceeded  at  once  to  a  determination 
of  the  question  whether  it  provided  for  the  taking  of 
private  property  for  uses  which  are  not  public.  Since 
this  decision  rests  upon  a  somewhat  intricate  statutory 
construction  a  rather  extended  quotation  from  the  opin- 
ion of  the  court  is  perhaps  permissible. 

This  brings  us  to  the  second  objection  to  the  validity  of 
the  act,  and  that  is,  does  it  authorize  the  taking  of  private 
property  for  uses  other  than  public  uses. 

The  complete  answer  to  this  objection,  it  seems  to  us, 
is  that  the  act  does  not  authorize  the  condemnation  of  private 

86  Laws  of  Maryland,  1910,  Ch.  no. 

3'^  Duke  Bond  vs.  The  Mayor  and  City  Council  of  Baltimore 
et  al,  116  Maryland,  683  (1911). 


THE  CONSTITUTIONALITY  297 

property  by  the  city  for  any  purpose  other  than  a  public 
use. 

Section  i  of  the  act  states  the  purpose  for  which  prop- 
erty may  be  taken  by  the  city,  and  that  is  clearly  stated  to  be 
for  the  purpose  of  constructing  the  highway  over  Jones 
Falls,  its  connections  with  streets  crossing  said  highway,  and 
to  acquire  for  said  purposes  land  or  other  property  in  the 
bed  of  the  highway  and  adjacent  thereto. 

The  use  of  the  expression  "  to  acquire  for  said  purpose  "  in 
the  act,  plainly  limits  and  designates  the  purpose  for  which 
property  may  be  taken  by  the  city,  and,  as  we  have  said,  for 
the  purpose  of  constructing  a  public  highway  over  Jones 
Falls  and  connecting  it  with  other  public  streets  crossing 
it. 

In  other  words,  we  think,  it  is  clear  that  the  only  pur- 
poses for  which  property  is  authorized  to  be  condemned 
are  those  set  out  in  section  i,  of  the  act,  to  wit :  for  the 
purpose  of  establishing  a  public  highway  over  Jones  Falls 
and  making  connections  between  said  highway  and  other 
highways  crossing  or  adjacent  thereto.  And  this  being  so, 
there  can  be  no  possible  or  serious  dispute,  that  the  use  for 
which  property  may  be  required  and  can  be  taken,  under 
section  i  of  the  act,  is  for  a  public  use ;  and  being  for  a  pub- 
lic use,  the  act  is  not  open  to  the  objections  urged  against 
it.38 

There  is  nothing  in  the  other  section  of  the  act,  which 
would  lead  to  a  different  conclusion  in  this  respect,  or  would 
in  any  way  sustain  the  appellant's  contention  in  this  case. 
The  words  "  landed  and  other  property  acquired,"  mentioned 
in  the  other  sections  of  the  act,  manifestly  refer  and  relate 
to  landed  or  other  property  to  be  acquired  "  for  the  pur- 
poses "  under  section  i,  of  the  act. 

The  validity  of  the  power  given  by  the  act  to  acquire 
land  or  other  property,  adjacent  to  the  highway,  on  either 

88  Citing  cases  on  "  public  use "  and  also  Acts  of  1908.  Ch. 
166  excess  condemnation  statute. 


298  EXCESS  CONDEMNATION 

or  both  sides  thereof,  incident  to  and  for  the  purposes  of  the 
construction  of  the  highway  and  its  connections,  has  uni- 
formly been  sustained  and  upheld  by  the  courts.^* 

It  cannot  be  assumed  in  this  case  that  the  city  will  under- 
take to  condemn  or  take  property  for  purposes  other  than 
those  authorized  by  the  act.  The  presumption  is  that  the 
city  will  act  within  its  rights  and  not  beyond  them.  It  will 
be  time  enough  to  pass  upon  this  question  when  it  properly 
arises  before  us.*° 

There  are  two  views  which  may  be  taken  of  the  sig- 
nificance of  this  case  so  far  as  it  afifects  the  constitu- 
tionality of  excess  condemnation.  It  is  possible  to  in- 
terpret it,  in  the  first  place,  as  a  practically  complete 
emasculation  of  the  excess  conderrination  act  of  1908. 
According  to  this  view  the  Supreme  Court  of  the  state 
by  a  process  somewhat  similar  to  that  employed  by  the 
South  Carolina  court  in  case  of  Dunn  vs.  Charleston,*^ 
has  so  interpreted  this  act  as  to  make  it  constitutional 
and  by  so  doing  has  read  out  of  it  any  real  power  of 
excess  condemnation.  In  other  words  the  power  to  con- 
demn land  in  excess,  which  was  sought  to  be  conferred 
by  the  statute  of  1910,  means  only  the  power  to  con- 
demn land  for  purposes  incidental  to  the  construction 
of  the  highway  such  as  land  used  for  cuts,  fills  and  con- 
nections with  other  highways.  This  view  is  strength- 
ened by  the  fact  that  the  court,  in  declaring  that  the  right 
of  the  city  to  condemn  land  for  such  incidental  purposes 
has  long  been  accepted  without  serious  question,  cites  the 
act  of  1908  conferring  power  of  excess  condemnation. 
If  this  interpretation  of  the  case  is  correct,  then  the  grant 

3°  Citing  cases  and  again  citing  the  excess  condemnation  act  of 
1908. 

<o  Duke  Bond  vs.  Mayor  and  City  Council  of  Baltimore  et  al, 
116  Maryland,  683. 

*i  Supra,  p.  283fr. 


THE  CONSTITUTIONALITY  299 

of  the  power  to  condemn  land  in  excess  is  practically 
meaningless,  and  the  act  of  1908  adds  nothing  to  the 
power  already  possessed  by  the  city. 

It  is  possible,  however,  to  look  at  this  case  in  a  some- 
what different  light.  The  act  of  1908  is  incorporated 
into  the  act  of  1910,  and  as  a  consequence  such  powers 
as  are  conferred  by  the  former  statute  are  limited  in 
scope  and  controlled  by  the  statement  of  purpose  con- 
tained in  the  latter  act.  Since  the  purpose  set  forth  in 
the  act  of  1910  for  the  exercise  of  the  power  therein 
conferred  is  somewhat  narrow  —  "  to  open,  construct  and 
establish  a  highway  "  —  only  such  powers  conferred  by 
the  act  of  1908  as  contribute  directly  to  the  accomplish- 
ment of  that  purpose  are  called  into  operation.  This  is 
very  far  from  saying  that  other  powers,  such  as  the 
power  of  excess  condemnation  for  protective  purposes, 
might  not  have  been  made  available,  had  the  act  of  19 10 
been  less  limited  in  scope.  In  other  words,  the  court 
does  not  have  before  it  in  this  case  the  question  whether 
or  not  the  power  of  excess  condemnation  may  be  consti- 
tutionally exercised,  but  only  the  question  of  the  propri- 
ety of  making  use  of  such  powers  granted  by  the  excess 
condemnation  statute  as  may  directly  contribute  to  the 
definite  purpose  set  forth  in  the  later  act.  The  question 
of  "  public  use "  for  which  land  is  sought  to  be  con- 
demned is  applied  not  to  the  whole  range  of  purposes  for 
which  private  property  might  be  taken  under  the  excess 
condemnation  act,  but  only  to  the  purpose  for  which  it 
may  be  taken  under  the  act  of  19 10. 

It  is  believed  that  this  latter  view  is  correct.  It  is 
hard  to  believe  that  a  state  supreme  court  would  annul 
an  important  statute  by  a  process  of  indirection.  One 
cannot  read  the  opinion  in  this  case  and  feel  that  the 
question   of   the  constitutionality   of   excess  condemna- 


300  EXCESS  CONDEMNATION 

tion  is  fairly  met  and  decided  or  that  the  court  intended 
to  have  it  so  regarded. 

The  first  and  only  statute  conferring  broad  powers  of 
excess  condemnation  to  be  brought  through  actual  litiga- 
tion before  the  supreme  court  of  a  state  was  the  Penn- 
sylvania act  of  1907.  The  main  features  of  this  law 
have  already  been  mentioned.*^  It  provided  that  cities 
might  condemn  land  within  two  hundred  feet  of  a  park, 
boulevard  or  street  and  latQr  sell  the  surplus  land  so 
taken  under  protective  restrictions,  Philadelphia  was 
the  first  city  of  the  state  to  take  advantage  of  the  powers 
granted  by  this  statute.  An  ordinance  passed  July  3, 
1912,  authorized  the  condemnation  of  certain  parcels  of 
land  adjacent  to  the  new  Fairmount  Parkway,  and  an 
ordinance  of  January  16,  1913,  provided  for  the  sale  of 
these  parcels  to  certain  parties  named  in  the  ordinance. 
The  owner  of  the  land  thus  taken  brought  action  in  the 
Common  Pleas  Court  to  restrain  the  appropriation  of  his 
property  on  the  ground  that  the  act  of  1907  and  the  two 
ordinances  passed  under  it  were  unconstitutional.*^ 

The  lower  court  upheld  the  validity  of  the  excess  con- 
demnation statute  and  ordinances  in  a  notable  opinion 
handed  down  by  Judge  Sulzberger.  The  vital  issue  was 
of  course  the  question  of  public  use.  After  citing  nu- 
merous cases  in  which  the  Pennsylvania  Supreme  Court 
had  upheld  the  exercise  of  the  right  of  eminent  domain 
in  connection  with  agricultural  and  horticultural  exposi-' 
tions  on  the  ground  that  such  institutions  had  educative 
value,  the  learned  judge  proceeded : 

If  the  Parkway,  from  the  City  Hall  to  Fairmount  Park, 
may  be  made  to  exhibit  the  best  results  of  architectural  skill 

*-  Supra,  p.  I  ID. 

•*3  Pennsylvania  Mutual  Life  Insurance  Co.  vs.  Philadelphia,  22 
Pennsylvania  District  Reports,  195. 


THE  CONSTITUTIONALITY  301 

and  of  industrial  achievement  in  the  building  art,  it  would 
seem  to  be  an  exposition  quite  as  useful  as  if  it  were  de- 
voted to  the  arts  of  agriculture  and  horticulture.  The  utili- 
tarian feature,  that  the  avenue  will  attract  strangers  from 
abroad  and  thus  benefit  the  city's  general  trade  and  com- 
merce, detracts  nothing  from  the  educative  quality  of  the 
exposition,  but  adds  a  new  ground  of  public  usefulness.** 

The  court  then  turned  to  what  it  admitted  to  be  a  very 
difficult  question  —  whether  land  is  taken  for  a  pubHc 
use  which  is  later  sold  in  fee  to  a  private  party. 

The  precise  question  appears  not  to  have  been  raieed  in 
any  reported  case  in  this  commonwealth.  There  are,  how- 
ever, cases  in  other  jurisdictions  which  hold  that  a  city 
may  be  authorized  to  acquire  by  eminent  domain,  an  ease- 
ment in  the  property  of  private  persons.  (Attorney-Gen- 
eral vs.  Williams,  174  Massachusetts,  476.)  While  we  may 
not  follow  this  as  authority  we  cannot  ignore  the  force  of 
its  reasoning.  The  case  before  us  is  one  of  first  impression, 
and  we  should  not  be  astute  to  declare  that  the  legislature 
has  exceeded  its  powers,  when  we  are  unable  to  point  to  any 
principle  of  the  Bill  of  Rights  or  any  specific  section  of  the 
Constitution  which  has  been  violated  or  trenched  upon.  The 
legislature  is  presumed  to  interpret  the  Constitution  with 
fidelity  and  intelligence,  and  though  its  construction  is  sub- 
ject to  review  by  the  courts,  it  may  not  be  set  aside,  es- 
pecially by  a  court  of  first  instance,  unless  it  is  obviously  er- 
roneous. We  cannot  say  that  the  statute  of  1907  is  in  clear 
violation  of  the  Constitution.  After  all,  condemning  the 
property,  charging  it  with  the  servitude  and  then  selling  it 
subject  to  the  public's  easement,  is  nothing  more  than  ac- 
quiring an  easement;  and  we  do  not  think  the  difference 
between  acquiring  it  directly  and  acquiring  it  indirectly  is  es- 
sential or  important.  The  substantial  thing  is  that  the  pub- 
lic may  by  condemnation  acquire  not  only  visible  property 

**  Idem,  201. 


302  EXCESS  CONDEMNATION 

but  also  an  easement,  though  it  be  invisible  and  immaterial. 
...  In  our  opinion,  the  act  of  1907  is  constitutional. 

The  court,  however,  declared  void  the  second  ordinance 
which  provided  for  the  sale  of  the  surplus  property  on 
the  ground  that  it  did  not  specify  the  restrictions  on  the 
future  use  of  that  property  which  alone  constituted  the 
public  purpose  necessary  to  sustain  the  taking  of  the  ex- 
cess land.*^ 

An  appeal  was  at  once  taken  to  the  Supreme  Court  of 
the  state,  and  that  tribunal  reversed  the  decision  of  the 
court  below  and  declared  the  excess  condemnation  act 
of  1907  and  the  ordinances  passed  in  pursuance  of  it  un- 
constitutional.*" Before  proceeding  to  a  discussion  of 
the  case  in  point  the  court  raised  the  question  already 
mentioned  above,*^  whether  "  public  use  "  in  connection 
with  the  law  of  eminent  domain  shall  be  interpreted  to 
mean  "  public  welfare,  utility  or  advantage  "  or  "  use  by 
the  public."  After  an  elaborate  examination  of  the  cases 
and  authorities  on  the  subject,  the  balance  fell  for  the 
court  on  the  side  of  the  narrow  interpretation. 

We  think  this  interpretation  of  the  words  "  public  use  "  is 
in  accord  with  their  plain  and  natural  signification  and  the 
weight  of  the  best  considered  authorities.  It  furnishes  a 
certain  guide  to  the  legislature  as  well  as  to  the  courts  in 
appropriating  private  property  for  public  use.  It  enables  the 
state  and  the  owner  to  determine  directly  their  respective 
rights  in  the  latter's  property.  If,  however,  public  benefit, 
utility  or  advantage  is  to  be  the  test  of  a  public  tise  then,  as 

*5  The  restrictions  which  it  planned  to  place  in  the  actual  deeds 
of  resale  were  held  not  to  be  sufficient,  as  the  act  required  the  re- 
strictions to  be  imposed  by  legislative  action. 

*c  Pennsylvania  Mutual  Life  Insurance  Co.  vs.  Philadelphia 
242,  Pennsylvania  State,  47  (1913). 

*7  Supra,  p.  279. 


THE  CONSTITUTIONALITY  303 

suggested  by  the  authorities,  the  right  to  condemn  the  prop- 
erty will  not  depend  on  a  fixed  standard  by  which  the  legis- 
lative and  judicial  departments  of  the  government  are  to  be 
guided,  but  upon  the  views  of  those  who  at  the  time  are  to 
determine  the  question.  There  will  be  no  limit  to  the  power 
of  either  the  legislature  or  the  courts  to  appropriate  private 
property  to  public  use,  except  their  individual  opinions  as  to 
what  is  and  what  is  not  for  the  public  advantage  and  utility. 
If  such  considerations  are  to  prevail,  the  constitutional  guar- 
antees as  to  private  property  will  be  of  small  moment.*^ 

Applying  this  test,  then,  of  "  use  by  the  public  "  to  the 
exercise  of  eminent  domain  authorized  by  the  act  of 
1907,  the  court  concluded  that  that  statute  permitted  the 
taking  of  private  property  for  a  use  which  is  not  public 
inasmuch  as  it  permitted  the  resale  of  the  surplus  land 
condemned. 

The  protection  of  the  highway  is  the  only  "public  use"  to 
which  the  land  is  to  be  applied.  The  property  is  not  to  be 
taken  and  held  by  the  city  for  any  use  for  which  a  statute 
confers  on  the  city  the  right  to  appropriate  it.  Saving  the 
restriction  contained  in  the  conveyance,  the  city  can  exercise 
no  control  over  it,  and  hence  cannot  use  it  for  any  purpose. 
The  only  possible  "  use,"  therefore,  which  the  city  can  make 
of  the  property  is  to  impose  restrictions  on  it  or  impress  it 
with  an  easement  in  the  hands  of  the  city's  vendee.** 

This  being  the  case  the  act  in  actual  effect  provided 
for  the  taking  by  eminent  domain  of  the  property  of  one 
citizen  and  vesting  the  title  to  that  property  in  another. 
The  court  concluded  its  argument  with  a  bitter  denuncia- 
tion of  the  statute  on  that  ground. 

It  is  true  that  in  the  present  case  the  declared  purpose  in 

*^Idem,  pp.  54-55. 
*»  Idem,  p.  55. 


304  EXCESS  CONDEMNATION 

taking  the  property  is  to  protect  the  highway  and  preserve 
the  light,  air,  etc.;  but,  if  that  be  conceded  to  be  a  legitimate 
public  use,  the  city  is  not  permitted  to  hold  it  for  that  or  any 
other  public  purpose.  The  statute  compels  the  city  to  sell 
and  divest  itself  of  the  control  or  use  of  the  property.  The 
restriction  imposed  by  the  act  M^hich  is  to  be  inserted  in  the 
deed  does  not  remove  the  objection  that  the  act  authorizes 
the  city  to  take  the  property  from  one  citizen  without  his 
consent  and  transfer  it  to  another.  The  act  does  not  require 
the  property  to  be  resold  to  the  party  from  whom  it  has  been 
taken,  which  might  justify  the  contention  that  the  only  pur- 
pose in  making  the  appropriation  was  to  impose  an  easement 
for  the  benefit  of  the  highway,  but  it  is  to  be  held  by  the  city 
as  a  fee  simple  owner  who  can  sell  to  whomsoever  it  pleases. 
It  deprives  the  owner  of  his  right  to  accept  the  restrictions 
and  retain  the  property  on  the  same  terms  as  the  city's 
vendee  would  hold  it.  It  empowers  the  city  at  the  pleasure 
of  its  officials  to  transfer  property  on  which  is  a  business 
plant  owned  by  one  individual  or  corporation  to  another  who 
is  engaged  in  the  same  or  another  business.  One  man  may 
be  deprived  of  his  home  for  the  benefit  of  another.  In  view 
of  its  provisions  conferring  almost  unlimited  discretion  on 
cities  or  their  officials  in  exercising  the  powers  granted,  it  is 
idle  to  say  that  the  statute  furnishes  no  opportunity  to  pro- 
duce such  results  or  to  promote  a  private  purpose.^" 

It  is  doubtless  true  that  the  powers  sought  to  be  exer- 
cised by  the  city,  under  the  excess  condemnation  statute, 
seemed  the  more  arbitrary  and  unjustifiable  by  reason  of 
the  fact  that,  even  before  the  parcel  of  land  in  question 
was  taken,  an  informal  understanding  was  entered  into 
between  the  city  and  a  certain  corporation  which  wanted 
the  land,  that,  when  acquired,  it  would  be  sold  to  it. 
This  corporation  desired  to  erect  a  business  block  of  a 
size  and  dignity  which  would  make  it  an  appropriate 

BO  Idem,  pp.  51-58. 


THE  CONSTITUTIONALITY  305 

structure  to  front  the  new  parkway.  The  parcel  in 
question  was  itself  too  small  to  be  put  to  such  a  use,  and 
the  authorities  felt  that  the  public  interest  demanded  the 
transfer  of  the  property  which  was  attempted.  These 
circumstances  gave  particular  force  to  the  argument  of 
the  court  that  this  was  an  exercise  of  the  power  of  emi- 
nent domain  for  the  purpose  of  taking  the  property  of 
one  man  and  transferring  it  to  another.  The  holding 
of  the  case  cannot,  however,  be  said  to  be  controlled  by 
these  particular  circumstances,  and  the  grounds  upon 
which  the  opinion  rests  are  broad  enough  to  condemn 
any  exercise  which  might  have  been  attempted,  of  the 
powers  contained  in  the  statute  of  1907. 

Since  there  is  usually  room  for  a  difference  of  opin- 
ion regarding  the  exact  significance  of  a  judicial  utter- 
ance, the  arguments  upon  the  basis  of  which  the  consti- 
tutionality of  excess  condemnation  has  been  decided  in 
the  foregoing  cases  have  been  presented  for  the  most 
part  in  the  words  of  the  courts  themselves.  Those  argu- 
ments may  now  be  summarized  and  certain  conclusions 
drawn. 

In  the  first  place,  the  grounds  upon  which  the  power 
of  excess  condemnation  has,  from  time  to  time,  been  held 
unconstitutional  group  themselves  under  three  heads. 
First,  the  "  public  use  "  for  which  private  property  may 
be  taken  by  eminent  domain  means  "  use  by  the  public," 
and  such  "  use  by  the  public "  is  impossible  when  the 
city  plans  later  to  dispose  of  the  property  it  has  con- 
demned as  in  the  case  of  excess  condemnation."^  Sec- 
ond, without  relying  upon  the  "  use-by-the-public  "  rule, 
the  promoting  of  commercial  and  industrial  develop- 
ment (through  the  creation,  for  example,  of  a  business 

s^  Pennsylvania  Mutual  Life  Insurance  Co.  vs.  Philadelphia, 
242,  Pennsylvania  State,  47. 


3o6  EXCESS  CONDEMNATION 

thoroughfare)  is  not  a  purpose  which  is  "public"  in 
the  sense  of  justifying  the  condemnation  of  land  or  the 
use  of  taxation.^^  Third,  the  actual  result  of  excess  con- 
demnation, whatever  may  be  the  motive  back  of  its  use, 
is  to  take  the  property  of  one  man  by  eminent  domain 
and  transfer  it  to  another.  This  violates  "  the  spirit  if 
not  the  letter  of  the  Constitution,"  ^^  and  deprives  a  citi- 
zen of  his  property  "  contrary  to  the  law  of  the  land."  ^* 

There  are  two  grounds  upon  which  the  power  to  con- 
demn land  in  excess  has  received  judicial  approval.  In 
the  first  place,  as  applied  for  the  purpose  of  protecting 
the  beauty  and  usefulness  of  a  boulevard  or  park,  excess 
condemnation  involves  the  taking  of  private  property  by 
eminent  domain  for  educational  and  esthetic  purposes 
and  such  purposes  constitute  a  "  public  use."  ^^  And  sec- 
ond, the  condemnation  of  remnants  of  land  is  an  exer- 
cise of  the  right  of  eminent  domain  for  a  use  necessary 
and  incidental  to  a  public  purpose.^^ 

It  is  evident  that  the  judicial  mind  has  viewed  excess 
condemnation  from  two  entirely  different  angles.  One 
line  of  opinion  has  limited  itself  to  examining  merely 
the  immediate  process  of  excess  condemnation  without 
regard  to  the  broad  purpose  for  which  that  policy  is  being 
employed.  It  sees  only  the  fact  that  property  is  taken 
from  one  man  by  eminent  domain  and  later  on  sold  or 
rented  to  another.  The  very  nature  of  excess  condemna- 
tion precludes  there  being  "  use  by  the  public  "  of  the 

'^2  Opinions  of  Justices,  204  Massachusetts,  607 ;  2og  Massa- 
chusetts, 616. 

53  The  Matter  of  Albany  Street,  11  Wend.,  148. 

•>*  Dunn  vs.  City  Council  of  Charleston,  Harper's  Law  Report 
(S.  C),  189. 

55  Pennsylvania  Mutual  Life  Insurance  Co.  vs.  Philadelphia,  22 
Pennsylvania  District  Reports,  195. 

5«  Opinions  of  Justices,  204  Massachusetts,  616. 


THE  CONSTITUTIONALITY  307 

property  taken,  and  such  "  use  by  the  pubHc  "  is  the  only 
legitimate  definition  of  "  public  use."  In  the  eyes  of 
these  judges,  no  form  of  excess  condemnation  is  con- 
stitutional since  the  defect  lies  in  the  very  nature  of  the 
policy. 

The  other  judicial  viewpoint  applies  its  constitutional 
test,  not  to  the  details  of  the  transaction  which  takes  place 
in  the  actual  operation  of  excess  condemnation,  but  to 
the  general  purpose  for  which  the  policy  is  employed. 
In  other  words,  excess  condemnation  is  a  means  to  an 
end  and  the  constitutionality  of  a  measure  embodying  it 
depends  upon  the  public  or  non-public  character  of  that 
end.  It  would  not  be  accurate  to  say  that  these  courts 
define  "  public  use "  for  which  land  may  be  taken  by 
eminent  domain  as  synonymous  with  public  utility  or  ad- 
vantage, because  there  are  many  purposes  directly  pro- 
moting the  public  welfare  for  which  they  would  not  per- 
mit land  to  be  condemned.  They  retain  the  privilege  of 
discriminating  between  the  many  uses  for  which  excess 
condemnation  may  be  employed.  They  are  free  to  de- 
clare unconstitutional  its  use  for  the  purpose  of  promot- 
ing the  commercial  interests  of  the  city,  by  opening  a 
business  thoroughfare  or  for  the  purpose  of  making  a 
profit  for  the  city  from  the  resale  of  the  surplus  land. 
At  the  same  time  they  are  not  precluded  from  upholding 
the  use  of  excess  condemnation  for  the  purpose  of  replot- 
ting  unusable  remnants  of  land  or  for  the  protection  of 
the  beauty  and  usefulness  of  a  public  improvement. 

It  would  be  mere  idle  speculation  to  attempt  to  predict 
which  of  these  two  viewpoints  would  be  adopted  by  the 
courts  of  those  states  in  which  the  question  of  the  con- 
stitutionality of  excess  condemnation  has  never  arisen. 
There  is  some  reason  to  suppose  that  the  weight  of 
authority  would  continue  to  lean  in  the  direction  of  the 


3o8  EXCESS  CONDEMNATION 

narrower  and  more  conservative  position.  At  any  rate 
the  proponents  of  excess  condemnation,  unwilling  to  run 
the  chance  of  having  their  efforts  frustrated  by  the  courts, 
are  laying  the  foundations  of  their  policy  in  constitutional 
provisions. 

Even  if  every  state  constitution  should  be  amended  so 
as  to  authorize  the  use  of  excess  condemnation,  the  ques- 
tion of  the  constitutionality  of  that  policy  would  not 
necessarily  be  settled.  There  remains  the  question  of  its 
vaUdity  under  the  provisions  of  the  Constitution  of  the 
United  States.  Is  excess  condemnation  in  violation  of 
the  due  process  clause  of  the  Fourteenth  Amendment? 
Will  the  Supreme  Court  of  the  United  States  sustain 
an  excess  condemnation  statute? 

It  is  usually  not  profitable  to  try  to  prophesy  how  that 
tribunal  will  answer  a  rather  novel  question  of  this 
kind.  An  examination  of  its  attitude  in  certain  anal- 
ogous cases,  however,  will  make  clear  some,  at  least,  of 
the  considerations  in  the  light  of  which  the  validity  of 
such  a  statute  would  be  tested. 

In  the  first  place,  the  Supreme  Court  has  definitely 
repudiated,  as  a  universal  test,  the  "  use  by  the  public  " 
doctrine  of  public  use.^^  In  sustaining  state  statutes  con- 
ferring the  right  to  condemn  irrigation  ditches  or  con- 
veyor belt  easements,  the  court  declared  that  what  was 
or  was  not  a  public  use  for  which  land  might  be  con- 
demned by  eminent  domain  was  a  question  which  must 
be  answered  in  the  light  of  the  varying  conditions  in  the 
different  states.  Thus  it  has  not  tied  its  hands  by  the 
enunciation  of  any  narrow  definition  of  the  term  "  public 
use,"  but  has  definitely  expressed  its  intention  of  defin- 

67  Strickley  vs.  Highland  Boy  Mining  Co.,  200  U.  S.,  527,  531 
(1905)  ;  Clark  vs.  Nash,  198  U.  S.,  361,  367ff.  (1904)  ;  Fallbrook 
Irrigation  District  w.  Bradley,  164  U.  S.,  112,  159,  160  (1896). 


THE  CONSTITUTIONALITY  309 

ing  that  term  with  considerable  elasticity  to  meet  the 
needs  of  various  states  in  dealing  with  their  special  prob- 
lems. 

In  the  second  place,  the  Supreme  Court  views  with 
highest  respect  the  interpretation  which  the  state  courts 
themselves  have  placed  in  individual  instances  upon  the 
term  public  use.  In  other  words,  it  will  be  inclined  to  be 
as  liberal,  at  least,  as. are  the  state  courts  in  construing 
that  term.  This  attitude  is  well  summed  up  by  Mr. 
Justice  Moody  in. the  case  of  Hairston  vs.  Danville  and 
Western  Railway  Company.^^ 

No  case  is  recalled  where  this  court  has  condemned,  as  a 
violation  of  the  Fourteenth  Amendment,  a  taking  upheld  by 
the  state  court  as  a  taking  for  public  uses  in  conformity  with 
its  laws.  .  .  .  We  must  not  be  under.stood  as  saying  that 
cases  may  not  arise  where  this  court  would  decline  to  follow 
the  state  courts  in  their  determination  of  the  uses  for  which 
land  could  be  taken  by  the  right  of  eminent  domain.  The 
cases  cited,  however,^^  show  how  greatly  we  have  deferred 
to  the  opinions  of  the  state  courts  on  this  subject,  which  so 
closely  concerns  the  welfare  of  their  people.  ...  It  remains 
for  the  future  to  disclose  what  cases,  if  any,  of  taking,  for 
uses  which  the  state  constitution,  law  and  court  approve, 
will  be  held  to  be  forbidden  by  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States. 

It  is  believed  that  the  Supreme  Court  would  be  equally 
reluctant,  save  in  exceedingly  clear  cases,  to  declare  un- 
constitutional under  the  due  process  clause  a  statute  en- 
acted by  a  state  legislature  in  pursuance  of  authority 
definitely  granted  by  a  provision  of  a  state  constitution. 

e8  2o8  U.  S.,  598,  607  (1907). 

"^  Fallbrook  Irrigation  District  vs.  Bradley,  164  U.  S.,  112; 
Clark  vs.  Nash,  198  U.  S.,  361 ;  Strickley  vs.  Highland  Boy  Mining 
Co.,  200  U.  S.,  527. 


3IO  EXCESS  CONDEMNATION 

In  the  light  of  these  facts  it  seems  fair  to  assume 
that  the  judgment  of  the  Supreme  Court  upon  the  con- 
stitutionahty  of  excess  condemnation  will  depend  upon 
the  purpose  for  which  that  policy  is  used.  If  the  only 
motive  for  the  application  of  that  scheme  was  to  secure 
to  the  city  treasury  the  profit  which  might  accrue  from 
the  resale  of  the  surplus  land  taken  it  could  probably  be 
argued  with  much  cogency  that  the  financial  need  of 
the  city  did  not  constitute  a  public  purpose  of  the  kind 
which  would  justify  the  condemnation  of  the  land  of  par- 
ticular citizens,  and  that  the  use  of  eminent  domain  for 
that  purpose  was  a  denial  of  the  equal  protection  of  the 
laws  and  a  deprivation  of  property  without  due  process 
of  law. 

There  seems,  however,  to  be  nothing  in  the  utterances 
of  the  Supreme  Court  thus  far  which  would  preclude 
its  adopting  the  view  that  the  efifective  replotting  of  rem- 
nants of  land  otherwise  unusable  and  the  adequate  protec- 
tion of  the  beauty,  health  and  usefulness  of  improvements 
admittedly  public  in  character  are  objects  so  important  to 
the  community  welfare  as  to  render  the  use  of  excess 
condemnation  for  those  purposes  a  justifiable  exercise  of 
the  right  of  eminent  domain. 


BIBLIOGRAPHICAL  NOTE 

In  studying  excess  condemnation  one  enters  a  field  of  re- 
search in  which  there  is  almost  no  isolated  literature.  The 
sources  from  which  this  study  has  been  wrought  out  do  not 
constitute  an  imposing  array  of  definitely  relevant  titles. 
They  comprise,  rather,  a  very  numerous  list  of  paragraphs, 
pages  or  chapters  which  have  been  extracted  from  books,  ar- 
ticles, reports  and  documents  bearing  upon  a  wide  range  of 
topics  and  which  are,  in  themselves,  of  little  general  informa- 
tional value.  It  has  been  deemed  worth  while  to  gather  to- 
gether into  a  bibliography  only  the  sources  which  have  def- 
inite independent  value  for  those  seeking  general  information 
upon  the  problem  of  excess  condemnation  and  to  indicate 
merely  the  types  of  sources,  periodicals,  reports  and  proceed- 
ings in  which  fugitive  data  regarding  specific  projects  of  ex- 
cess condemnation  sometimes  appear. 

EXCESS  CONDEMNATION  IN  THE  UNITED  STATES 
General 

NoLEN,  John.    City  Planning.    New  York  (1916.) 
Robinson,     Charles     Mulford.    The     Improvement    of 

Towns  and  Cities.    New  York  (191 3.) 
City  planning  with  Special  Reference  to  Streets  and 

Lots.    New  York  (1916.)     Chap.  xvii. 
Shurtleff,  Flavel,  and  Olmsted,  F.  L.     Carrying  Out 

the  City  Plan ;  The  Practical  Application  of  American 

Law  in  the  Execution  of  City  Plans.    Russell  Sage 

Foundation  Publication.    New  York    (1914).     Chap. 

iv. 
Swan,  Herbert  S.     Excess  Condemnation;  A  Report  of 

the  Committee  on  Taxation  of  the  City  of  New  York 
21  311 


312  BIBLIOGRAPHICAL  NOTE 

with  a  Report  Prepared  by  Herbert  S.  Swan  for  the 
National  Municipal  League.    New  York,  191 5. 

Periodicals,  Reports,  Documents  and  Serials 

American  City.    New  York.     Published  monthly. 

American  Year  Book,  The.  New  York.  Published  an- 
nually. 

City  Planning  Reports.  Plans  have  been  proposed  for 
many  American  cities.  Some  of  the  more  elaborate 
ones  discuss  the  application  of  excess  condemnation  to 
local  conditions.  Examples  of  this  are:  Plan  of  Chi- 
cago, 1909;  Comprehensive  Plan  of  Newark,  1915; 
City  Plan  for  St.  Louis,  1907. 

Civic  and  Art  Associations.  Annual  reports  or  occa- 
sional bulletins.  Examples  are,  Transactions  of  the 
Commonwealth  Club  of  California,  San  Francisco; 
Annual  Reports  of  the  City  Parks  Association  of  Phila- 
delphia. 

Municipal  Journal.    New  York. 

Municipal  Reports  and  Documents.  These  deal  usually 
with  local  problems.  Examples  are,  Report  of  New 
York  City  Improvement  Commission,  1904,  1907;  Re- 
port of  the  Commission  on  the  Congestion  of  Popula- 
tion in  New  York  City,  191 1;  Final  Report  of  Joint 
Board  on  Metropolitan  Improvements,  Boston,  191 1; 
Report  of  Commission  on  New  Sources  of  City  Rev- 
enue, New  York,  1913. 

National  Conference  on  City  Planning.  Proceedings. 
Boston.    Published  annually. 

National  Municipal  Review.  Baltimore.  Published  quar- 
terly. 

Legal  Aspects  of  Excess  Condemnation. 

Brief  Upon  the  Constitutionality  of  Excess  Condemnation. 
Proceedings  of  First  National  Conference  on  City 
Planning.  Senate  Document  No.  422,  61  st  Congress, 
2nd  Session.     1909. 


BIBLIOGRAPHICAL  NOTE  313 

Fisher,  Walter  L.  Legal  Aspects  of  the  Plan  of  Chi- 
cago.   Plan  of  Chicago.     1909. 

Nichols,  Philip.  The  Power  of  Eminent  Domain;  a 
Treatise  on  the  Constitutional  Principles  which  Affect 
the  Taking  of  Property  for  Public  Use.     Boston,  1909. 

Lewis,  John  A.  A  Treatise  on  the  Law  of  Eminent  Do- 
main in  the  United  States.  Chicago,  3rd  Edition, 
1909. 

Warner,  John  DeWitt.  Report  on  the  Scope  and  Limits 
of  Expropriation ;  "  Incidental "  vs.  "  Excess  "  Con- 
demnation. 1912.  Report  of  the  Department  of 
Docks  and  Ferries  of  the  City  of  New  York. 

EXCESS  CONDEMNATION  IN  FOREIGN  COUNTRIES 
General. 

Baumann,  Arthur  A.  Betterment,  Worsement  and  Re- 
coupment.    London,  1894. 

Dawson,  W.  H.  "  Appendix  E,  i,  to  Report  of  London 
Traffic  Branch  of  the  Board  of  Trade,"  Parliamentary 
Papers,  1908,  Vol.  xciii.  Treats  of  German  City- 
planning  Legislation. 

Edwards,  Percy  J.  History  of  London  Street  Improve- 
ments, 1855-1897.    London,  1898. 

Massachusetts.  Legislative  Committee  on  Eminent  Do- 
main. Report,  December  29,  1903.  House  Document 
No.  288.  A  collection  of  reports  upon  the  operation 
of  excess  condemnation  in  England  and  France. 

Katz,  Paul  A.    Enteignung  und  Stadtebau.     Berlin,  1909. 

Kissan,  B.  W.  Report  on  Town-planning  Enactments  in 
Germany.     Bombay,  1913. 

Nettleford,  J.  S.  Practical  Town  Planning.  London, 
1914. 

Parker,  E.  M.  Supplemental  Report  on  French  and  Other 
Continental  Systems  of  Taking  Land  for  Public  Pur- 
poses. 1904.  Massachusetts  House  Document  No. 
1096. 


314  BIBLIOGRAPHICAL  NOTE 

Periodicals,  Reports,  Documents  and  Serials. 

Block,  Maurice.  Dictionaire  de  I' Administration  Fran- 
gaise.    Paris,  1905. 

Canadian  Municipal  Journal,  The.  Montreal.  Published 
monthly. 

Garden  Cities  and  Town  Planning.  Westminster.  Pub- 
lished monthly. 

Handworterhuch  der  Staatswissenschaften.  Jena.  1890- 
1897. 

Kommunalis  Jahrhuch.    Jena.    Published  annually. 

Municipal  Reports  and  Documents.  Annual  reports  and 
statistics.  Examples  are,  London  Statistics;  Minutes 
and  Proceedings  of  the  London  County  Council. 

Municipal  Year  Book  of  the  United  Kingdom.  London. 
Published  annually. 

Parliamentary  Papers.  Reports  and  statistics.  Published 
annually.  Examples  are,  Report  of  the  Royal  Com- 
mission on  London  TrafHc,  Parliamentary  Papers, 
1906,  Vols,  xli,  xHi,  xliii;  Report  of  London  Traffic 
Branch  of  the  Board  of  Trade,  idem,  1908,  Vol.  xciii, 
1912-13,  Vol.  xxxix,  1914.  Vol.  xi. 

Stddtebau,  Der.     Berlin.     Published  monthly. 

Town  Planning  Review.    Liverpool.    Published  quarterly. 


LIST  OF  CASES  CITED 

Albany  Street,  In  Matter  of,  ii  Wendell  (N.  Y.),  149,  60, 

285,  287.  306. 
Attorney-General  vs.  Williams,  174  Mass.,  476,  91,  279. 
Bennett  vs.  Boyle,  40  Barber  (N.  Y.),  551,  287. 
Chicago,  Burlington  and  Quincy  Railroad  Co.,  vs.  Chicago, 

166,  U.  S.  226,  277. 
Clark  vs.  Nash,  198  U.  S.,  361,  300,  309. 
Clark  vs.  Nash,  27  Utah,  158,  280. 
Currier  vs.  Marietta  and  Cincinnati  Railroad  Co.,  11  Ohio 

State,  228,  276. 
Dayton  Mining  Co.  vs.  Seawall,  11  Nev.,  394,  277. 
Duke  Bond  vs.  Mayor  and  City  Council  of  Baltimore,  116 

Md.,  683,  296,  298. 
Dunn  vs.  City  Council  of  Charleston,  Harper's  Law  Report 

(S.  C),  189,  50,  60,  282,  306. 
Embury  vs.  Conner,  3  N.  Y.,  511,  287. 
Fallbrook  Irrigation  District  vs.  Bradley,   164  U.   S.,   112, 

308,  309. 
Hairston  vs.  Danville  and  Western  Railway  Co.,  208  U.  S., 

598,  309- 
Haller  Sign  Works  vs.  Physical  Culture  Training  School, 

249  111.,  436,  89. 
Highland  Boy  Gold  Mining  Co.  vs.  Strickley,  28  Utah,  215, 

280. 
Lowell  vs.  Boston,  11 1  Mass.,  454,  291, 
Mayor  and  Common  Council  of  Baltimore,  vs.  Clunet,  et.  al., 

23  Md.,  449,  50. 
Opinions  of  the  Justices,  204  Mass.,  607,  107,  290,  306. 
Opinions  of  the  Justices,  204  Mass.,  616,  289,  306. 
Opinions  of  the  Justices,  211  Mass.,  624,  294. 
Pennsylvania  Mutual  Life  Insurance  Co.  vs.  City  of  Phila- 

delphia,  22  Pa.  Dist.  Reports,  195,  112,  300,  306, 

315 


3i6  EXCESS  CONDEMNATION 

Pennsylvania  Mutual  Life  Insurance  Co.  vs.  City  of  Phila- 
delphia, 242  Pa.  State,  47,  112,  302,  305. 
Pierre  Boulat  vs.  Municipality  Number  One,  5  La.  Ann., 

363,  50- 
Potlatch  Lumber  Co.  vs.  Peterson,  12  Idaho,  769,  281. 
Salisbury  Land  and  Improvement  Co.  vs.  Commonwealth, 

215  Mass.,  371,  294. 
Strickley  vs.  Highland  Boy  Mining  Co.,  200  U.  S.,  527,  308, 

309- 
West  River  Bridge  Co.  vs.  Dix,  6  Howard,  507,  278. 


INDEX 


Administration  of  excess  con- 
demnation, central  control 
over,  211,  253;  constitutional 
amendment  for,  necessary, 
216,  provisions  of,  240;  di- 
versity in  methods  of,  215 ; 
efficiency  in,  211;  statute  em- 
bodying, 247.  See  also  Con- 
stitutional amendment,  and 
statute 

Amendment.  See  Constitution- 
al Amendment 

Assessments,  deferred,  126; 
special.  See  Special  Assess- 
ments 

Auction,  190,  263 

Back  Bay  Flats,  reclaiming  of, 

4 

Baden,  law  for  replotting  rem- 
nants in,  40 

Baltimore,  commission  on 
Burnt  District  in,  47;  rem- 
nants in,  47,  50;  constitution- 
ality of  excess  condemna- 
tion in,  295 

Bavaria,  replotting  remnants  in, 

34 

Belgium,  excess  condemnation 
in,  purposes  of,  152;  in  Brus- 
sels, 153;  in  Liege.  156 

Betterment  taxes.  See  Special 
assessments 

Bonds,  for  financing  excess 
condemnation,  267 

Boston,  Back  Bay  Flats  re- 
claimed in,  4 ;  easements  con- 
demned in,  91;   excess  con- 


demnation applied  to  pro- 
posed thoroughfare  in,  105, 
141,  290;  remnants  in,  law 
regarding,  46;  special  assess- 
ments in,  123 

Boulevards,  protection  of.  See 
Protection  of  improvements 

Brooklyn,  purchase  of  remnants 
in,  46;  sites  for  public  build- 
ings in,  75 

Brussels,  excess  condemnation 

in,  153 
Building  sites.    See  Sites 

Canada,  excess  condemnation 
in,  142,  253 

Carnegie  Avenue,  Qeveland, 
excess  condemnation  pro- 
posed in,  137 

Central  Park,  land  values  af- 
fected by,  186 

Charleston,  S.  C,  remnants  in, 
50.  60,  61 ;  constitutionality 
of  excess  condemnation  in, 
281 

Cleveland,  excess  condemnation 
proposed  in,  137,  188,  207 

Commission  of  Conservation  in 
Canada,  252;  to  draft  plan 
for  excess  condemnation  pro- 
jects, 248,  249,  251,  266;  on 
Metropolitan  Improvements, 
Boston,  report  of,  105 

Compensation,  for  property 
condemned,  denial  of,  183, 
196;  excessive,  147,  148,  165, 
182,  183,  184.  193;  improve- 
ments created  to  secure,  i^ 


317 


3i8 


INDEX 


195 ;  required  by  constitu- 
tion, 276;  risk,  as  an  element 
of,  in  excess  condemnation, 
192,  193 

Compulsory  purchase,  of  rem- 
nants, 42,  50 

Condemnation  procedure,  im- 
portance of,  256 

Congestion  of  population,  re- 
lieving in  Massachusetts,  5, 
294 

Connecticut,  excess  condemna- 
tion in,  134,  13s 

Constitutional  amendment,  pro- 
viding for  excess  condemna- 
tion, necessity  of  (216;  char- 
acter of,  240 
See     also     analytical     table 

2l8ff 

Constitutionality,  of  denial  of 
compensation,  196 ;  of  excess 
condemnation,  decisions  on, 
principles  underlying,  305 ; 
federal  constitution,  under, 
308;  in  Maryland,  294;  in 
Massachusetts,  106,  287,  290, 
293,  294 ;  in  New  York,  285 ; 
in  Pennsylvania,  11 1,  300; 
principles  underlying,  276;  in 
South  Carolina,  281 ;  United 
States  Supreme  Court,  prob- 
able views  of  309 ;  two,  theor- 
ies regarding,  306 ;  of  imposi- 
tion of  restrictions  under  po- 
lice power,  113 

Corruption,  financial  risk  result- 
ing from,  210;  of  Metropoli- 
tan Board  of  Works,  164,  166 

Council  of  State,  in  France, 
control  of  excess  condemna- 
tion of,  55,  151,  152 

Court  House  of  New  York 
County,  77 

Damages.    See  Compensation 


Deferred  assessments,  126 

Delancy  Street,  New  York, 
Widening  of,  25 

Disposal  of  surplus  land,  meth- 
ods of,  246,  261 

Docks.  See  Waterfront  facili- 
ties 

Easements,  condemnation  of, 
advantages,  of,  92 ;  in  Boston, 
91 ;  disadvantages  of,  93 ; 
compared  with  excess  con- 
demnation, 12;  in  Indiana, 
statute  for,  91 ;  for  protec- 
tion of  improvements,  90;  in 
reclamation  projects,  5 

Eminent  domain,  law  of,  ex- 
cess condemnation  as  an  ex- 
pansion of,  275 ;  principles  of, 
discussed,  276;  public  use, 
doctrine  of  in,  277;  United 
States  Supreme  Court,  views 
of,  308 
See  also  Constitutionality 

Enabling  acts,  passed  under 
constitutional  amendments 
for  excess  condemnation,  102 

England,  condemnation  in,  for 
general  purpose  forbidden, 
83 ;  excess  condemnation  in, 
central  control  of,  253;  com- 
pensation for  denied,  183 ; 
Holborn-to-the-Strand  im- 
provement in,  171 ;  housing 
problem  met  by,  4;  under 
Land  Clauses  Consolidation 
Act,  51,  157,  168;  in  Leeds, 
178;  under  London  County 
Council,  168,  170;  Wall  Ap- 
proach project,  177;  in  Man- 
chester, 177 ;  under  Metropol- 
itan Board  of  Works,  158, 
166,  210,  262;  Northumber- 
land Avenue  project  in,  162; 
proposed   changes   in   policy 


INDEX 


319 


of  169;  remnants  of  land  in, 
37;  for  recoupment,  results 
of,  159,  167,  170;  restrictions 
imposed  under,  loi,  104;  spe- 
cial assessments  in  conjunc- 
tion with,  169;  trade  interests 
in  connection  with,  196,  199; 
increment  tax  in,  129,  130 
Excess  property.  See  Surplus 
Excess  purchase.  See  Pur- 
chase 
Exchange,  acquiring  land  by, 
257;  disposing  of  land  by,  61, 
261,  265 ;  of  land  to  reduce 
cost  of  trade  interests,  200 

Fairmount  Park  Commission, 
given  power  to  condemn  rem- 
nants, 61 

Fairmount  Parkway,  excess 
condemnation  in,  109,  300; 
remnants  in,  27 

Financial  gains  from  excess 
condemnation,  sources  of, 
181,  185,  189 

Financial  provisions,  for  excess 
condemnation,  267 

Financial  results,  of  excess 
condemnation ;  in  Belgium, 
154;  in  Boston,  141 ;  in  Cleve- 
land, 140;  in  France,  147;  in 
connection  with  Holborn-to- 
the-Strand  improvement,  173; 
importance  of,  180;  in  Leeds, 
178;  under  London  County 
Council,  170;  in  Manchester, 
177 ;  under  Metropolitan 
Board  of  Works,  158;  in 
Montreal,  144;  in  connection 
with  Northumberland  Avenue 
improvement,   162;  in  Paris, 

147 
Financial  risks  incident  to  ex- 
cess condemnation,  113,  145, 
149,  191-212,  268 


Farmer  owner,  reinstatement  of 
on  surplus  land,  116,  117,  199, 
263,  264 

Fourteenth  Amendment,  276, 
308 

France,  excess  condemnation  in, 
laws  for,  157;  for  replotting 
remnants,  54;  trade  interests 
in,  196.    See  also  Paris 

Frankfurt  am  Main,  increment 
tax  in,  130 ;  replotting  of  land 
in,  40 
See  also  Lex  Adickes 

Germany,  excess  condemnation 
in,  central  control  of,  253; 
in  cities  of,  remnants,  efforts 
to  prevent  in,  27.  See  also 
Lex  Adickes 

Gift,  acquisition  of  land  by,  257 

Halifax,  excess  condemnation 
in,  142;  remnants  in,  58 

Hamburg,  replotting  remnants 
in,  34 

Hartford,  Connecticut,  excess 
condemnation  in,  134 

Holborn-to-the-Strand,  im- 

provement, excess  condemna- 
tion applied  to,  171 ;  compen- 
sation denied  when,  183 ;  land 
values  in,  188;  restrictions  to 
protect,  104,  208;  trade  inter- 
ests and,  197 

House  of  Lords,  Select  Com- 
mittee of  on  Town  Improve- 
ments, 167 

Housing,  excess  condemnation 
for,  4,  294 

Increment  taxes,  conclusions 
regarding,  132 ;  criticisms  of, 
131;  in  England,  129,  130; 
excess  condemnation  com- 
pared with,  129;  in  Germany, 


320 


INDEX 


130;  nature  of,  19;  in  New 
Brunswick,  130;  special  as- 
sessments compared  with, 
130 ;  used  with  other  methods, 
214 

Insanitary  areas,  condemnation 
of,  4 

Interest  charges,  in  Holborn- 
to-the-Strand,  174,  201 ;  in 
Manchester,  178,  201 ;  in 
Montreal,  145;  a  source  of 
financial  risk,  200,  205 

Kingsway  and  Aldwych.  See 
Holborn-to-the- Strand 

Land     Clauses     Consolidation 

Act,  51,  157,  168 
Land  surplus.    See  Surplus 
Lease,  of  surplus  land,  261 
Leeds,  excess  condemnation  in, 

178 
Lex    Adickes,     for    replotting 

remnants,  40-44 
Liege,  excess  condemnation  in, 

156 
Liverpool,    trade    interests    in, 

197 
London,    excess    condemnation 

in,    158;    trade    interests    in, 

197 

See  also  London  County 
County  Council  and  Metro- 
politan Board 
London  County  Council,  con- 
siders changes  in  excess  con- 
demnation policy,  168;  suc- 
ceeds Metropolitan  Board, 
167 ;  restrictions  exercises 
power  to  impose;  results  of 
recoupment  under,  170;  pro- 
poses use  of  special  assess- 
ments, 169 

See  also  Holborn-to-the- 
Strand 


Louisana,  law  of,  regarding 
remnants,  50 

Mall    Approach    improvement, 

excess  condemnation  in,  177 ; 
restrictions  to  protect,  105; 
trade  interests  in,  199 

Manchester,  excess  condemna- 
tion in,  177,  197,  203,  206 

Maryland,  constitutionality  of 
excess  condemnation  in,  294; 
laws  of  for  purchase  of  rem- 
nants in,  47,  50;  laws  for  ex- 
cess condemnation,  98 

Massachusetts,  excess  condem- 
nation in,  constitutionality  of, 
106,  287,  290,  293,  294;  con- 
stitutional amendments  for, 
102,  107,  294;  laws  for,  legis- 
lative commission  on  eminent 
Domain,  54,  61,  62;  reclama- 
tion of  Back  Bay  Flats,  4; 
remnants,  purchase  of,  46,  51 
See  also  Boston,  Massachu- 
setts Remnants  Act 

Massachusetts  Highway  Com- 
mission, given  power  of  ex- 
cess condemnation,  135 

Massachusetts  Remnant  Act  of 
1904,  Boston  proposed  use  of 
in,  63,  105 ;  history  of,  61 ; 
provisions  of,  62;  use  of  in 
Springfield,  65;  purchase  of 
remnants  under,  51 

Metropolitan  Board  of  Works, 
excess  condemnation  under, 
158;  corruption  of  210,  262; 
Royal  Commission  to  investi- 
gate, 166 

Montreal,  excess  condemnation 
in,  143,  188,  19s;  compensa- 
tion denied  when,  195 ;  pur- 
chase of  remnants  in,  51 

New  Brunswick,  increment  tax 
in,  I3Q 


INDEX 


321 


New  Haven,  excess  condemna- 
tion in,  13s 

New  Jersey,  constitutional 
amendment  for  excess  con- 
demnation in,  242 

New  York,  excess  condemna- 
tion in,  constitutional  amend- 
ments for,  98,  102;  constitu- 
tionality of  285 ;  laws  for,  99, 
102,  136;  for  replotting  rem- 
nants, 59,  60,  285 ;  purchase 
of  remnants  for,  46 

New  York  City,  excess  con- 
demnation in,  law  for,  102; 
proposal  to  apply,  98,  108; 
and  land  values,  31,  186,  192; 
remnants  in,  25,  59,  60;  sites 
for  public  buildings  in,  75,  TJ, 

79 

New  York  County,  courthouse 
in,  77 

Northumberland  Avenue,  ex- 
cess condemnation  in,  162, 
197 

Ohio,  excess  condemnation  in, 
law  for,  97;  financial  pro- 
visions of  discussed,  267,  269 

Ontario,  condemnation  of  rem- 
nants in,  57 

Oregon,  excess  condemnation 
statute  of,  98 

Paris,  excess  condemnation 
in,  discussed,  146;  central 
control  of,  253 ;  power  of, 
farmed  out,  149;  recent  re- 
vision in  law  of,  152 ;  for 
replotting  remnants,  54,  55 ; 
excessive  compensation,  193, 
194 

Parks,  protection  of.  See  Pro- 
tection of  improvements 

Pennsylvania,  excess  condem- 
nation      in,       constitutional 


amendments  for,  100;  consti- 
tutionality of,  300;  laws  for, 
98,  99;  for  replotting  rem- 
nants, 61 

Philadelphia.  See  Fairmount 
Parkway 

Plan,  for  excess  condemnation 
projects,  248,  252,  254 

Police  power,  for  protection  of 
improvements,  87,  112 

Profit,  from  excess  condemna- 
tion, disposal  of,  270 
See  also  Recoupment,  Finan- 
cial gains 

Protection  of  improvements, 
condemnation  of  easements 
for,  90;  excess  condemnation 
for,  proposed  in  Boston,  105 ; 
conclusions  regarding  finan- 
cial risks,  213 ;  criticisms  of 
considered,  113,  114;  nature 
of,  7,  96;  proposed  in  New 
York,  108;  used  in  Philadel- 
phia, 109;  provisions  for  dis- 
cussed, 97;  restrictions  im- 
posed in,  99 ;  in  England,  103, 
104 ;  through  police  power,  87 

Prussia,  Lex  Adickes,  extended 
to,  40 ;  replotting  remnants  in, 

34.  45 

Public  buildings.    See  Sites. 

Public  improvements.  See  Pro- 
tection of  improvements 

Public  use,  in  law  of  eminent 
domain,  277 
See  also  Constitutionality 

Purchase,  of  excess  land,  3,  iio, 
112,  257 
See  also  Remnants 

Purposes  of  excess  condemna- 
tion, 7,  242 

Reclamation,  of  Back  Bay  Flats, 

4 
Recoupment,  excess  condemna- 


322 


INDEX 


tion  for;  in  Belgium,  152;  in 
Boston,  141 ;  in  Brussels,  153 ; 
in  Canada,  142;  in  Cleveland, 
137;  in  England,  156;  con- 
clusions regarding,  212;  in 
France,  146;  in  Halifax,  142; 
Hartford,  134;  increment 
taxes  compared  with,  129; 
laws  for  discussed,  133;  in 
Liege,  156;  used  by  Massa- 
chusetts Highway  Commis- 
sion, 135 ;  in  Montreal,  143 ; 
in  New  Haven,  135 ;  in  Paris, 
55,  56,  146;  as  applied  to 
remnants,  55,  56,  57,  68;  in 
Salem.  136;  special  assess- 
ments compared  with,  129; 
in  Syracuse,  136;  theory  of, 
8,  14 ;  in  Worcester,  135 ;  in 
Wiirtemberg,  56,  57.  Finan- 
cial results 

See    also    Increment    taxes. 
Special  Assessments 
Reinstatement  of  former  owner, 
on  surplus  land,  116,  117,  199, 
263,  264 

Remnants  of  land,  excess  con- 
demnation applied  to,  in 
Charleston,  S.  C.,  conclusions 
regarding,  71,  213;  constitu- 
tionality of,  282,  285,  287;  in 
France,  55  ;  in  Halifax,  58;  in 
Hartford,  134;  in  Massachu- 
setts, 61 ;  in  New  York  City, 
59 ;  in  Ontario,  57 ;  in  Phila- 
delphia; statute  for,  pro- 
visions of,  68;  theory  of,  7; 
in  Wiirtemberg,  56;  Lex 
Adickes  as  means  of  replot- 
ting,  40 ;  problem  of,  24 ;  pur- 
chase of  by  city,  45,  50;  re- 
sults of,  28;  voluntary  co- 
operation as  means  of  replot- 
ting,  34,  37 


Replotting.    See  Remnants 

Restrictions  on  excess  land,  dis- 
cussed, 176,  245,  266;  in  Eng- 
land, 104,  105,  172,  208;  fi- 
nancial results  of,  208 

Rhode  Island,  reinstatement  of 
former  owner  in,  117 

Risks.    See  Financial  risks 

Sale,  of  surplus  land,  methods 
discussed,  261 

Salem,  excess  condemnation  in, 
136 

Salisbury,  Marquis  of,  view  on 
recoupment,  160 

Saxony,  replotting  remnants  in, 
34,  40 

Scotland,  housing  problem  met 
by  condemnation  in,  4 

Select  Committee  on  Town  Im- 
provements, 167 

South  Carolina,  remnants  in, 
50,  60,  61,  281 

Sites  for  public  buildings,  74; 
condemnation  for  indefinite 
purpose,  to  secure,  82 ;  excess 
condemnation  applied  to 
problem  of,  81 ;  present  meth- 
ods of  securing  discussed,  74; 
relation  to  land  values,  187 

Special  assessments,  conclus- 
ions regarding,  128;  deferred, 
126;  levied  by  districts,  126; 
in  England,  103,  169,  172;  ex- 
cess condemnation  compared 
with,  121,  138,  139;  increment 
tax  compared  with,  130;  in 
Kansas  City,  127;  laxity  in 
fixing  amount  of,  124 ;  limita- 
tions on,  18,  121,  122,  124; 
nature  of,  17;  remnants  as  af- 
fecting, 29 ;  used  with  excess 
condemnation,  138,  214 

Springfield,  Mass.,  remnants 
condemned  in,  65 


INDEX 


323 


Statute  embodying  excess  con- 
demnation, provisions  of  dis- 
cussed 241-274;  summary  of, 
271 ;  for  statutes,  see  analyti- 
cal table,  2i8ff 

Surplus  land,  acquisition  of, 
244,  257,  258;  disposal  of,  190, 
246 

See    also    Recoupment    and 
Purchase 

Swampscott,  town  of,  excess 
condemnation  in,  135 

Syracuse,  excess  condemnation 
in  136 

Taxes,  affected  by  improve- 
ments, 186;  loss  of  in  excess 
condemnation,  145,  178,  205 

Theory,  of  increment  taxes,  19; 
of  excess  condemnation  for 
protection  of  improvements, 
7,  II,  114;  for  recoupment,  8, 
14,  119;  of  reinstatement  of 
former  owner  on  surplus 
land,  116;  of  special  assess- 
ments, 17 


Toronto,  excess  condemnation 
in,  143 ;  remnants  in,  58 

Town  Planning  Act  of,  1909,  27^ 
130,  253 

Trade  interests,  and  excess  con- 
demnation, 165,  166,  169,  196, 
198 

United  States  Supreme  Court, 
view  of  constitutionality  of 
excess  condemnation,  309 

Waterfront  facilities,  excess 
condemnation  to  develop,  98, 
108 

Wharves.  See  Waterfront  fa- 
cilities 

Wisconsin,  excess  purchase  in, 
2 

Worcester,  excess  condemna- 
tion in,  135,  19s 

Workmens'  dwellings,  excess 
condemnation  to  provide, 
294 

Wiirtemberg,  condemnation  of 
remnants  in,  45,  56 


0) 


LOS  ANGELES 


A    000  688  358     i 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


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DEC  10  197? 


Form  LO-Series  444 


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